### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-11037 Summary Calendar

JAMES ANTHONY WARREN, Plaintiff-Appellant

v. T H E E S TAT E O F H E N RY W A DE, Dallas County District Attorney; BILL H I L L , Dallas Co u n t y District Attorney; FAITH SIMMONS, Dallas County District Attorney; CRAIG WATKINS, Dallas County District Attorney; LARISSA T. ROEDER, Dallas County Asst. District Attorney, Defendants-Appellees

Appeals from the United States District Court f or the Northern District of Texas USDC No. 3:12-CV-938

Before KING, DAVIS, and ELROD, Circuit Judges. PER CURIAM: * James Anthony Warren, Texas prisone r # 1 334008, moves for leave to proceed i n forma pauperis (IFP) on appeal from the d i s m i s s a l of his 42 U.S.C. § 1 983 compl a i n t

. The district court dismissed his complaint as f rivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A, reasoning that his claims

were barred by Heck v. Humphrey , 512 U.S. 477 (1994). The district court also denied Warren’s motion to proceed IFP o n appeal and certified that this appeal was not taken in good faith. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D J uly31, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-11037 Document: 00512326692 Page: 1 Date Filed: 07/31/2013No. 12-11037

By moving to p roceed IFP here, Warren is c hallenging the district court’s certification decision. See B augh v. Taylor , 1 17 F.3d 197, 202 (5th Cir. 1 9 9 7). Warren’s bare assertions that Heck does not apply to his case are i nsufficient to show that the district court erred in certifying that his appeal w as not taken in good faith. See id. ; Howard v . King , 707 F.2d 215, 219-20 (5th Cir. 1983). His remaining assertions do not concern Heck and likewise do n ot d e m o n s t r a t e a nonfrivolous issue for appeal. The instant appeal is w ithout arguable merit and is dismissed as frivolous. See Baugh , 117 F.3d at 202 n.24; Howard , 707 F.2d at 219-20; 5 T H C I R

. R. 42.2. Warren filed a prior civil sui t t h a t was dismissed b y the d istrict court under § 1915A(b)(1) for failure to state a claim, a decision from which he did not appeal. Warren v. Hunt Cnty. C r i m i n a l J ustice Ctr. , No. 3:97-CV-705-R (N.D. Tex. Apr. 3 0, 1 997). That prior dismissal counts a s one strike under § 1915(g). See Adepegba v. Hammons , 1 03 F.3d 38 3 , 3 8 7 ( 5 t h Cir. 1 996). Based on the district court’s dismissal of h i s i n s tant complaint and our dismissal of this appeal as frivolous, Warren h as a ccumulated two additional strikes, f or a total of at l east three strikes under § 1915(g). Se e id. at 388. T hus, Warren may not proceed IFP in a ny civil action or ap p eal f iled while h e is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g). In addition, w e w a r n Warren that frivolous, r epetitive, or o therwise abusive filings w ill invite the imposition o f sanctions, including dismissal, monetary sanctions, and/or r estrictions on his ability to f ile pleading s i n t his court and a ny court s ubject to this court’s jurisdiction. Warren is further warned that he should review any pending appeals and a ctions a nd move to dismiss any that are frivolous. MOTION FOR LEAVE TO PROCEED I FP DENIED; A P P E AL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED; SANCTION WARNING ISSUED.
2 Case: 12-11037 Document: 00512326692 Page: 2 Date Filed: 07/31/2013