United States Court of Appeals

for the Fifth Circuit

No. 20-20359

Zachariah Harvey, 

Plaintiff—Appellant,

versus

Ken Paxton, Attorney General, 

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-1090

Before Stewart, Haynes, and Ho, Circuit Judges.

Per Curiam:*

Zachariah Harvey, Texas prisoner # 1853348, moves for leave to 

proceed in forma pauperis (IFP) on appeal from the district court’s dismissal 

of his 42 U.S.C. § 1983 complaint for failure to state a claim for relief. The 

district court found that Harvey’s claims were barred by Heck v. Humphrey, 

512 U.S. 477 (1994). For the same reason, the district court denied Harvey 

* 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opinion should not be published and is not precedent except under the limited 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

July 26, 2021

Lyle W. Cayce

Clerk

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permission to proceed IFP on appeal and certified that the appeal was not 

taken in good faith.

By moving to proceed IFP, Harvey is challenging the district court’s 

certification that this appeal was not taken in good faith. 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 citations omitted).

Harvey argues that the appellee was responsible for his subordinates

following unconstitutional policies to deprive him of his constitutional rights 

in connection with Harvey’s conviction. Harvey further asserts that he was 

unable to obtain certain records relating to his conviction. However, he does 

not adequately address or challenge the district court’s finding that his claims 

were barred by Heck. Because he fails to adequately brief any relevant issues, 

they are abandoned. See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 

813 F.2d 744, 748 (5th Cir. 1987). Harvey’s appeal lacks any issue of arguable 

merit and is therefore frivolous. See Howard, 707 F.2d at 220. 

Accordingly, his motion for leave to proceed IFP on appeal is 

DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d 

at 202 & n.24; 5TH CIR. R. 42.2. His motion for the appointment of counsel 

is DENIED.

The dismissal of Harvey’s complaint by the district court for failure 

to state a claim and the dismissal of this appeal as frivolous count as strikes 

under 28 U.S.C. § 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1763 

(2015). Harvey has previously received a strike for a dismissal of another 

§ 1983 complaint for failure to state a claim. Harvey v. Livingston, 4:14-CV2272 (S.D. Tex. Aug. 14, 2014). Because Harvey now has at least three 

strikes, he is BARRED from proceeding IFP in any civil action or appeal 

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filed in a court of the United States while he is incarcerated or detained in 

any facility unless he is under imminent danger of serious physical injury. See 

§ 1915(g). He is WARNED that any pending or future frivolous or repetitive 

filings in this court or any court subject to this court’s jurisdiction may 

subject him to additional sanctions, and he is directed to review all pending 

matters and move to dismiss any that are frivolous, repetitive, or otherwise 

abusive.

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