IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50540

TERRY ALLEN MILES,

Plaintiff-Appellant

v.

HORATIO R. ALDREDGE, Federal Public Defender’s Office; JOSE 

GONZALEZ-FALLA, Federal Public Defender’s Office,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:19-CV-473

Before HAYNES, GRAVES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Terry Allen Miles appeals the dismissal, as frivolous, of his civil rights 

action alleging that the defendants, while representing Miles in a criminal 

prosecution, disclosed confidential attorney-client communications to a third 

party, made malicious and disparaging remarks about him to a third party, 

verbally abused and threatened him, and failed to use exculpatory medical and 

psychological evidence at trial. In connection with his appeal, Miles moves for 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 28, 2020

Lyle W. Cayce

Clerk

 Case: 19-50540 Document: 00515326880 Page: 1 Date Filed: 02/28/2020
No. 19-50540

2

leave to proceed in forma pauperis (IFP) and for a change of venue. Under 28 

U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the trial 

court certifies in writing that it is not taken in good faith.” Thus, lack of funds 

is not the sole issue in assessing a requires to proceed in forma pauperis on 

appeal. In Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997), we held that a 

litigant may challenge this conclusion of lack of good faith on appeal; thus, we 

construe Miles’s appeal as such a challenge.

However, Miles does not address the district court’s pertinent findings

that, as public defenders performing traditional legal functions, Aldredge and 

Gonzalez-Falla could not be sued under Bivens v. Six Unknown Agents of 

Federal Bureau of Narcotics, 403 U.S. 388 (1971), or 42 U.S.C. § 1983, see Polk 

County v. Dodson, 454 U.S. 312, 325 (1981), or that Miles’s claims are, in any 

event, barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). See

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 

1987). Consequently, he fails to show that the district court abused its 

discretion in denying IFP status because of the lack of a good faith basis for 

the appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); Carson v. 

Polley, 689 F.2d 562, 586 (5th Cir. 1982). We accordingly deny the IFP motion. 

We also deny Miles’s motion for a change of venue because he did not 

first seek a change of venue in the district court. See United States v. Corbo, 

555 F.2d 1279, 1281 (5th Cir. 1977). Finally, because Miles’s appeal is frivolous 

in light of Polk County and Heck, and because the merits of his appeal “are so 

intertwined with the [IFP] certification decision as to constitute the same 

issue,” Baugh, 117 F.3d at 202 & n.24, we exercise our discretion to dismiss 

the appeal as frivolous, see 5TH CIR. R. 42.2.

The dismissal of Miles’s civil rights action and the dismissal of this 

appeal, both as frivolous, each count as a strike under 28 U.S.C. § 1915(g). See 

 Case: 19-50540 Document: 00515326880 Page: 2 Date Filed: 02/28/2020
No. 19-50540

3

Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Miles is warned that 

if he accumulates three strikes, he will not be able to 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 28 U.S.C. 

§ 1915(g).

MOTION TO PROCEED IFP DENIED; MOTION FOR CHANGE OF 

VENUE DENIED; APPEAL DISMISSED AS FRIVOLOUS; THREESTRIKES WARNING ISSUED.

 Case: 19-50540 Document: 00515326880 Page: 3 Date Filed: 02/28/2020