     Case: 13-10661      Document: 00512530560         Page: 1    Date Filed: 02/12/2014




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

                                                                                    FILED
                                      No. 13-10661                          February 12, 2014
                                                                               Lyle W. Cayce
STACEY ERVIN,                                                                       Clerk

                                                 Plaintiff-Appellant

v.

DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE; SOUTHWESTERN
INSTITUTE OF FORENSIC SCIENCES (SWIFS),

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC No. 3:13-CV-9


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Stacey Ervin, Texas prisoner # 1732730, moves for leave to proceed in
forma pauperis (IFP) to appeal the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint as barred by Heck v. Humphrey, 512 U.S. 477 (1994). Ervin
alleged that the Southwestern Institute of Forensic Sciences misplaced DNA
evidence in its care, thereby violating his due process rights under the
Fourteenth Amendment.            He sought to recover both compensatory and
punitive damages.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-10661     Document: 00512530560     Page: 2   Date Filed: 02/12/2014


                                  No. 13-10661

      By moving to proceed IFP, Ervin is challenging the district court’s
certification that his appeal is not taken in good faith under 28 U.S.C.
§ 1915(a)(3). See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our
inquiry into an appellant’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).
      Although Ervin contends that that the district court misapplied the Heck
bar because a decision in his favor would not result in his release from prison
or invalidate his conviction, an award of damages on his loss-of-evidence claim
would implicitly question the validity of Ervin’s conviction under Heck. See
Penley v. Collin County, Tex., 446 F.3d 572, 572-73 (5th Cir. 2006). Thus,
because he has failed to show “that his conviction has been reversed on direct
appeal, expunged by executive order, invalidated by other state means, or
called into question by the issuance of a federal habeas writ,” Penley, 446 F.3d
at 573 (citing Heck, 512 U.S. at 486-87), his appeal is without arguable merit,
see Howard, 707 F.2d at 220.
      Accordingly, his motion for leave to proceed IFP on appeal is denied, and
his appeal is dismissed as frivolous. See 5th Cir. R. 42.2. This court’s dismissal
counts as a strike for purposes of the “three strikes” bar under § 1915(g). See
§ 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Ervin
is warned that if he accumulates three strikes, he may not proceed IFP in any
civil action or appeal filed while he is incarcerated or detained in any facility
unless he is under imminent danger of serious physical injury. See § 1915(g).
      IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.




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