Ahmadi v. Davis, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20793
Summary Calendar

REZA AHMADI,

Plaintiff−Appellant,

versus

LORIE DAVIS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division;
DAVID G. GUTIERREZ, Chair;
DENISE WILLIAMS, Program Supervisor, III,

Defendants−Appellees.

Appeal from the United States District Court
for the Southern District of Texas
No. 4:19-CV-4147

Before SMITH, COSTA, and HO, Circuit Judges.
PER CURIAM:
*

Reza Ahmadi, former Texas prisoner # 1713862, moves to proceed in

*
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should not be published and is not precedent except under the limited circumstances set forth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 5
TH CIRCUIT RULE 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 27, 2020

Lyle W. Cayce
Clerk
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No. 19-20793
2
forma pauperis (“IFP”) in this appeal from the denial of his 42 U.S.C. § 1983
action wherein he sought damages based on an allegedly unlawful period of
confinement. The district court dismissed the complaint as barred by Heck v.
Humphrey, 512 U.S. 477, 486−87 (1994), and because it failed to state a claim
and was malicious. The court also issued a sanctions warning, then denied
Ahmadi’s motion to proceed IFP on appeal, certifying that the appeal was not
taken in good faith.
Ahmadi’s motion to proceed IFP and his appellate brief are construed as
a challenge to the district court’s certification that the appeal is not taken in
good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.
§ 1915(a)(3); F
ED. R. APP. P. 24(a). To proceed IFP, Ahmadi must demonstrate
financial eligibility and a nonfrivolous issue for appeal. See Carson v. Polley,
689 F.2d 562, 586 (5th Cir. 1982).
This court’s inquiry into whether a nonfrivolous issue exists “is limited
to whether the appeal involves legal points arguable on their merits (and there-
fore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citations omitted). If this court upholds the district
court’s certification and the appellant persists in taking an appeal on the
merits, he must pay the full appellate filing fees and costs within thirty days
or the appeal will be dismissed for want of prosecution. Baugh, 117 F.3d
at 202. This court may determine the merits of an appeal “where the merits
are so intertwined with the certification decision as to constitute the same
issue.” Id. If the appeal is frivolous, this court may dismiss it sua sponte.
Baugh, 117 F.3d at 202 n.24; see 5
TH CIR. R. 42.2.
In Heck, “the Supreme Court held that if a plaintiff’s civil rights claim
for damages challenges the validity of his criminal conviction or sentence, and
the plaintiff cannot show that such conviction or sentence has been reversed,
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No. 19-20793
3
invalidated, or otherwise set aside, the claim is not cognizable under § 1983.”
Magee v. Reed, 912 F.3d 820, 822 (5th Cir. 2019). Ahmadi incorrectly argues
that, because he no longer has the habeas remedy available to him, his § 1983
complaint is not subject to the favorable-termination requirement in Heck. He
does not establish that the calculation of his sentence has been reversed, inval-
idated, or otherwise set aside. Consequently, his suit for damages based on his
allegedly unlawful confinement is barred by Heck. See Magee, 912 F.3d at 822.
Because Ahmadi fails to present a nonfrivolous issue for appeal, the
appeal is DISMISSED as frivolous, and Ahmadi’s IFP motion is DENIED.
1
See
Baugh, 117 F.3d at 202 n.24; see 5
TH CIR. R. 42.2. Given Ahmadi’s history of
frivolous and repetitive litigation regarding his conviction and confinement, he
is WARNED that the filing of frivolous, repetitive, or otherwise abusive chal-
lenges to his conviction or confinement will invite the imposition of sanctions,
which can include dismissal, monetary sanctions, and restrictions on his abil-
ity to file pleadings in this court and any court subject to this court’s
jurisdiction. To avoid sanctions, Ahmadi is ORDERED to review all pending
matters and move to dismiss any that are frivolous, repetitive, or otherwise
abusive.

1
Because Heck is dispositive, this court will not address Ahmadi’s remaining appel-
late arguments.
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