     Case: 18-30763      Document: 00514897172         Page: 1    Date Filed: 04/01/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit


                                      No. 18-30763                           FILED
                                                                          April 1, 2019
                                                                        Lyle W. Cayce
DENNIS RAY DAVIS, JR.,                                                       Clerk

                                                 Plaintiff-Appellant

v.

ROBERT BOBBY WHYCE; CHERLY STILLS; YOULANDA WILLIAMS;
THERESA RUFFIN; LIEUTENANT SHARON; CADDO CORRECTIONAL
CENTER; JAMES T. DIXON; PAMELA SMART; CARLOS PRUDHOMME;
RICKEY SWIFFTS,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 5:18-CV-9


Before JONES, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Dennis Ray Davis, Jr., Louisiana prisoner # 469947, moves this court for
leave to proceed in forma pauperis (IFP) in appealing the district court’s sua
sponte dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A of his 42
U.S.C. § 1983 action against the Caddo Correctional Center, five jail
employees, and four public defenders or members of public defender boards.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-30763

Construed liberally, see Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993),
Davis’s largely incomprehensible pro se pleadings complain of errors in the
state court bond process and allege that he has been falsely imprisoned since
August 3, 2016, on state charges of attempted first degree murder and armed
robbery using a firearm. Additionally, Davis asserts that he was subjected to
double jeopardy with respect to two 2016 state convictions for driving while
intoxicated, and he complains of his state court counsel’s performance.
      By moving to proceed IFP in this court, Davis is challenging the district
court’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). In evaluating whether an appeal is
taken in good faith, our inquiry “is limited to whether the appeal involves legal
points arguable on their merits (and therefore not frivolous).” Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citations
omitted).   Where the merits of an appeal are so intertwined with the
certification decision as to constitute the same issue, we may deny the IFP
motion and dismiss the appeal sua sponte if it is frivolous. Baugh, 117 F.3d at
202 & n.24; see 5TH CIR. R. 42.2. We review de novo the district court’s
dismissal of Davis’s complaint pursuant to §§ 1915(e)(2)(B) and 1915A. See
Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009); Geiger v. Jowers, 404
F.3d 371, 373 (5th Cir. 2005).
      Davis has failed to raise an arguable legal issue with respect to the
dismissal of his claims against the public defender defendants for failing to
satisfactorily resolve his legal issues. See Howard, 707 F.2d at 220. To state
a claim under § 1983, a plaintiff must allege the violation of a constitutional
right committed by a person acting under color of state law. See West v. Atkins,
487 U.S. 42, 48 (1988). As the district court concluded in denying relief, the
public defender defendants were not acting under color of state law while



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                                   No. 18-30763

representing Davis in a criminal proceeding. See Polk County v. Dodson, 454
U.S. 312, 325 (1981).
      Likewise, Davis has failed to raise an arguable legal issue with respect
to the dismissal of his claims for release from custody. See Howard, 707 F.2d
at 220. As the district court recognized, “when a state prisoner is challenging
the very fact or duration of his physical imprisonment, and the relief he seeks
is a determination that he is entitled to immediate release or a speedier release
from that imprisonment, his sole federal remedy is a writ of habeas corpus.”
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
      Finally, to the extent that Davis is seeking damages for the violation of
his right against double jeopardy with respect to two 2016 DWI convictions,
his claims are frivolous as barred by Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). See Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996). In Heck, 512
U.S. at 486-87, the Supreme Court held that a § 1983 plaintiff may not recover
damages for allegedly unconstitutional conviction or imprisonment without
proving that the conviction or sentence has been invalidated or called into
question, which Davis has not done here. Additionally, while Davis reasserts
his claims below for damages for false imprisonment, he has failed to address,
and thereby abandoned any challenge to, the district court’s determination
that those claims are barred by Heck. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      In light of the foregoing, Davis’s motion for leave to proceed IFP is
DENIED, and his remaining motions for bail pending appeal, to expand the
certificate appellant bond, and to stay his state court proceedings are likewise
DENIED. His appeal is DISMISSED AS FRIVOLOUS. See Baugh, 117 F.3d
at 202 & n.24; 5TH CIR. R. 42.2.




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                                 No. 18-30763

      Our dismissal of the instant appeal and the district court’s dismissal of
Davis’s action count as two strikes for purposes of § 1915(g). See McGarrah v.
Alford, 783 F.3d 584, 584 (5th Cir. 2015). Davis previously accrued a § 1915(g)
strike in a prior prisoner’s civil rights lawsuit. See Davis v. Wyche, No. 5:17-
CV-1230 (W.D. La. Dec. 15, 2017). Since Davis now has three strikes, he is
BARRED from proceeding IFP in any civil action or appeal filed while he is
detained or incarcerated in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
      MOTIONS DENIED; APPEAL DISMISSED; § 1915(g) BAR IMPOSED.




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