     Case: 14-30965      Document: 00513036689         Page: 1    Date Filed: 05/08/2015




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

                                      No. 14-30965                                FILED
                                                                               May 8, 2015
                                                                             Lyle W. Cayce
KENNITH W. MONTGOMERY,                                                            Clerk

                                                 Plaintiff-Appellant

v.

STATE OF LOUISIANA; CITY OF LAKE CHARLES; CALCASIEU PARISH;
CLAYTON DAVIS; JOHN F. DEROSIER; BRETT P. GASPARD; KELVIN
LEDOUX; TODD CHADDICK; MELANIE HINTON; JON HENDERSON;
DAVID THOMPSON; EDWARDO BORDA; GARRETT PUCKETT; ROBERT
TRAHAN;   LEONARD     GADDY;   ALBERT   HOOPER;   SHERIFF’S
DEPARTMENT CALCASIEU PARISH; TONY MANCUSO; H. LYNN JONES,
II; ABRAHAM HANDY; CATHERINE STAGG; C A T DRUG TASK FORCE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:13-CV-884


Before KING, JOLLY and HAYNES, Circuit Judges.
PER CURIAM: *
       Kennith W. Montgomery, Louisiana prisoner # 123966, moves for leave
to appeal in forma pauperis (IFP) following the district court’s dismissal of his
civil action. The district court dismissed Montgomery’s civil rights claims


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30965

concerning his arrest, trial, and conviction as legally frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B)(i), (ii) because they were barred under Heck v.
Humphrey, 512 U.S. 477 (1994).
      By moving for leave to proceed IFP, Montgomery is challenging the
district court’s certification decision. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997).     Our inquiry into Montgomery’s good faith “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 citation omitted). We may determine the merits
of a litigant’s appeal “where the merits are so intertwined with the certification
decision as to constitute the same issue.” Id. If the appeal is frivolous, we may
dismiss it sua sponte under 5TH CIR. R. 42.2. See Baugh, 117 F.3d at 202 n.24.
      We reject Montgomery’s contention that the district court’s adverse
ruling on his civil rights claims shows judicial bias. See Liteky v. United States,
510 U.S. 540, 555 (1994). Montgomery asserts that, because he was granted
leave to proceed IFP in the district court, his IFP status should carry over to
his appeal; however, in order to proceed IFP on appeal, Montgomery must
successfully challenge the district court’s certification that his appeal was not
taken in good faith. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220.
Montgomery’s contention that the district court did not properly certify that
his appeal was not taken in good faith is without merit given that the district
court incorporated by reference the reasons stated in the magistrate judge’s
report. See Baugh, 117 F.3d at 202 n.21.
      Montgomery argues that his objections to the magistrate judge’s report
should have been upheld. However, after reviewing the record, we are satisfied
that the district court, like the magistrate judge, did not err in determining
that Montgomery’s civil rights claims challenging his arrest, trial, and



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                                  No. 14-30965

conviction were barred under Heck because success on such claims would
necessarily imply the invalidity of his conviction. See Heck, 512 U.S. at 486-
87; Clarke v. Stalder, 154 F.3d 186, 190-91 (5th Cir. 1998) (en banc).
      Montgomery has waived all other issues involved in the instant appeal
by failing to brief them. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
In view of the foregoing, Montgomery has not shown that his appeal involves
“legal points arguable on their merits (and therefore not frivolous).” Howard,
707 F.2d at 220 (internal quotation marks and citations omitted). Accordingly,
Montgomery’s motion for leave to proceed IFP is DENIED and his appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
      The district court’s dismissal of Montgomery’s civil rights claims under
§ 1915(e)(2)(B)(i), (ii) counts as a strike for purposes of 28 U.S.C. § 1915(g), as
does the dismissal as frivolous of the instant appeal.          See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Montgomery has previously
accumulated two strikes under § 1915(g) based on the district court’s dismissal
of civil actions. See Montgomery v. City of Lake Charles, No. 2:10-cv-1297 (W.D.
La. Mar. 9, 2011); Montgomery v. Mancuso, No. 2:12-cv-2510 (W.D. La. Aug.
28, 2013). Because Montgomery has accumulated at least three strikes under
§ 1915(g), he is now BARRED from proceeding IFP in any civil action or appeal
filed in a court of the United States while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical injury. See
§ 1915(g).




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