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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-31061

Summary Calendar

REDELL REDD

Plaintiff-Appellant

v.

JAMES M LEBLANC, Secretary of Public Safety and Correction; CONNIE

KENNEDY, Records Custodian; DEPUTY WARDEN STEVE RADER

Defendants-Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:08-CV-465

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Redell Redd, Louisiana prisoner # 125980, seeks leave to proceed in forma

pauperis (IFP) in his appeal of the dismissal of his civil rights complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous. In dismissing Redd’s

complaint, the district court adopted the magistrate judge’s recommendation

that the complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as

barred under Heck v. Humphrey, 512 U.S. 477 (1994). 

United States Court of Appeals

Fifth Circuit

F I L E D

October 1, 2009

Charles R. Fulbruge III

Clerk
No. 08-31061

2

The district court denied Redd leave to proceed IFP on appeal, certifying

that the appeal was not taken in good faith. By moving for leave to proceed IFP,

Redd is challenging the district court’s certification. See Baugh v. Taylor, 117

F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a).

Redd asserts that the district court failed to give reasons as required by

Baugh for certifying that his appeal was not taken in good faith. However, the

district court stated specifically that it was certifying that Redd’s appeal was not

taken in good faith “for the reasons set forth in the magistrate judge’s report,”

and such an incorporation by reference satisfies Baugh’s requirements. See

Baugh, 117 F.3d at 202 n.21. 

Redd also asserts that he never received notice of the magistrate judge’s

report and recommendation and that he was not given the opportunity to

respond before the district court rendered its decision. However, because the

magistrate judge did not consider any factual disputes in recommending that

Redd’s complaint be dismissed as Heck-barred and because the district court

could assess the merits of Redd’s complaint on its face, any error by the district

court was harmless. See Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir. 1981). 

Redd does not challenge the district court’s determination that his claim

was barred by Heck. Accordingly, he has abandoned the only issue before this

court. See Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). 

In light of the foregoing, Redd’s motion fails to show error in the district

court’s certification decision and fails to show that Redd will raise a nonfrivolous

issue on appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).

Accordingly, Redd’s motion to proceed IFP on appeal is denied, and his appeal

is dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

This court’s dismissal and the district court’s dismissal of Redd’s complaint

each count as strikes for purposes of § 1915(g). See Adepegba v. Hammons, 103

F.3d 383, 387-88 (5th Cir. 1996). Redd is warned that if he accumulates three

strikes under § 1915(g), he will not be able to proceed IFP in any civil action or
No. 08-31061

3

appeal filed while he is incarcerated or detained in any facility unless he is

under imminent danger of serious physical injury. See § 1915(g).

MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING

ISSUED.