United States Court of Appeals

for the Fifth Circuit

No. 19-10729

Frank D. McCollum, III, 

Plaintiff—Appellant,

versus

Lupe Valdez, Sheriff-Dallas County, Texas, 

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:18-CV-1778

Before Willett, Ho, and Duncan, Circuit Judges.

Per Curiam:*

Frank D. McCollum, III, Texas prisoner # 2021347, moves for leave 

to proceed in forma pauperis (IFP) in his appeal of the district court’s 

dismissal of his 42 U.S.C. § 1983 civil rights action as barred under Heck 

v. Humphrey, 512 U.S. 477, 486-87 (1994), and as frivolous. By moving to 

proceed IFP in this court, McCollum challenges the district court’s 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 25, 2021

Lyle W. Cayce

Clerk

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No. 19-10729

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certification that his appeal was not taken in good faith. See Baugh v. Taylor, 

117 F.3d 197, 202 (5th Cir. 1997). 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). 

Although McCollum first argues that a brief discussing his claims is 

already before this court in another appeal, he may not incorporate such 

arguments by reference. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 

1993). Next, McCollum argues that Heck does not apply to his case because 

a favorable ruling would not affect the fact or duration of his confinement. 

He contends that the Fifth Circuit has provided relief for a “conditions of 

confinement” claim under Shepherd v. Dallas County, 591 F.3d 445 (5th Cir. 

2009), which he contends involves circumstances that are identical to his 

own mistreatment and punishment in pretrial detention. However, he fails 

to demonstrate any error in the district court’s application of Heck, and his 

conclusory argument based on the inapposite decision in Shepherd fails to 

demonstrate that he stated a nonfrivolous conditions of confinement claim. 

Finally, McCollum does not reassert any of the remaining claims that he 

raised in the district court, nor does he otherwise challenge the district 

court’s decision. See Yohey, 985 F.2d at 224-25.

Because McCollum fails to identify any nonfrivolous issues for appeal, 

his IFP motion is DENIED, and the appeal is DISMISSED as frivolous. 

See Baugh, 117 F.3d at 202 & n.24; 5th Cir. R. 42.2. This dismissal and 

the dismissal of McCollum’s case in the district court each count as a strike 

for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 

388 (5th Cir. 1996), abrogated in part on other grounds by Coleman v. Tollefson, 

575 U.S. 532, 537 (2015). McCollum is WARNED that, if he accumulates 

three strikes, he may not proceed in forma pauperis in any civil action or 

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appeal filed 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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