IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-21189 Summary Calendar

FINIS BLANKENSHIP,

Plaintiff-Appellant,

versus

GERALD GARRETT,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CV-2300 -------------------- February 13, 2003

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Finis Blakenship, Texas state prisoner # 208266, seeks

permission to proceed in forma pauperis (IFP) to appeal the

denial of his

complaint, in which he alleged

that he is entitled to damages because he was denied due process

during his parole revocation proceedings and his parole was

illegally revoked. In filing the IFP motion, Blakenship is

challenging the district court’s certification decision that his

appeal was not taken in good faith. See Baugh v. Taylor, 117

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-21189 -2-

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

(a)(3); FED.

R. APP. P. 24(a)(5).

The district court failed to comply with Baugh since it

neither provided reasons for certifying that Blakenship’s appeal

was not taken in good faith, nor incorporated its decision on the

merits of Blakenship’s complaint. Baugh, 117 F.3d at 202; Rule

24(a)(3). Nevertheless, this court may dismiss the case sua

sponte pursuant to 5TH CIR. R. 42.2 if it is apparent that the

appeal lacks merit. Baugh, 117 F.3d at 202 & n.24.

Blakenship has not addressed the district court’s

determination that his claims are barred by Heck v. Humphrey,

(1994). Thus, any challenge to the dismissal of the

complaint on that basis is abandoned. See Yohey v. Collins,

(5th Cir. 1993). However, because the district

court failed to provide reasons for its bad faith certification,

the court will address the merits of the appeal. This court’s

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,

(5th Cir. 1983) (citation omitted).

Blakenship’s complaint challenges the validity of his parole

revocation proceedings and he has not shown that the revocation

of his parole has been set aside or otherwise called into

question. His claims are barred by Heck and, thus, have no No. 02-21189 -3-

arguable merit. See Heck,

-87; Jackson v. Vannoy,

(5th Cir. 1995).

Insofar as Blakenship argues that he should not be required

to prepay the filing fee, the district court stated that the fees

would be paid when the funds became available in Blakenship’s

prison trust account. Thus, this argument is also frivolous.

Blakenship has failed to identify a nonfrivolous issue for

appeal, and he has not shown that the district court erred in

certifying that an appeal would not be taken in good faith.

Blakenship’s motion to proceed IFP is DENIED, and his appeal is

DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR.

R. 42.2.

The dismissal of this appeal as frivolous and the dismissal

of the complaint as frivolous by the district court both count as

a strike for purposes of

(g). See Adepegba v.

Hammons,

(5th Cir. 1996). Blakenship is

cautioned that once he accumulates three strikes, he will not be

permitted to proceed in forma pauperis 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

(g).

IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING

ISSUED.