Markus Green v. Lisa Vu

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Markus Green v. Lisa Vu

Doc. 0

Case: 10-50223

Document: 00511217506

Page: 1

Date Filed: 08/27/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50223 S u m m a r y Calendar August 27, 2010 Lyle W. Cayce Clerk

M A R K U S A GREEN, P la in t if f -A p p e lla n t v. L IS A VU, D e fe n d a n t -A p p e lle e

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 1:09-CV-913

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* M a r k u s A. Green, Texas inmate # 1118715, moves to proceed in forma p a u p e r is (IFP) in this appeal from the dismissal of his complaint. In his

c o m p la in t , Green claimed under 28 U.S.C. § 1985(3) that defendant Lisa Vu c o n s p ir e d with law enforcement officers to violate his civil rights by making false s e x u a l assault charges which resulted in his arrest and indictment. Green, who w a s convicted of practicing medicine without a license and causing psychological h a r m , Green v. State, 137 S.W.3d 356, 359 (Tex. Ct. App. 2004), also requested
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 10-50223

Document: 00511217506 Page: 2 No. 10-50223

Date Filed: 08/27/2010

t h a t the district court certify the question of the constitutionality of sections 1 6 5 .1 5 2 and 165.153 of the Texas Occupations Code, the statutes that c r im in a l i z e the practice of medicine without a license, to the Texas Attorney G e n e r a l pursuant to 18 U.S.C. § 2403(b). The district court determined that Green's challenge to the

c o n s t it u t io n a lit y of the statutes used to convict him was barred pursuant to Heck v . Humphrey, 512 U.S. 477 (1994). The district court further determined that, t o the extent that Green's claims against Vu were not barred by Heck, they were b a r r e d by the applicable statute of limitations given that Green was complaining o f events that occurred in 2001 and 2002 and Green had not filed his complaint u n t il 2009. The district court dismissed Green's complaint as frivolous and d e n ie d leave to proceed IFP, certifying that the appeal was not taken in good fa it h . Green's IFP motion is a challenge to that certification. See Baugh v. T a y lo r , 117 F.3d 197, 202 (5th Cir. 1997). G r e e n argues that the Heck doctrine does not apply because he was not c o n v ic t e d of an offense that involved Vu. Green contends that his appeal is t im e ly , but he does not appear to realize that his claim against Vu was dismissed o n the grounds that it was barred by the applicable statute of limitations. B e c a u s e there is no federal statute of limitations for actions brought p u r s u a n t to § 1985(3), federal courts borrow the forum state's general personal in ju r y limitations period. See Wallace v. Kato, 549 U.S. 384, 387 (2007); Dumas v . Town of Mt. Vernon, 612 F.2d 974, 977 (5th Cir. 1980) (overruled on other g r o u n d s , Larkin v. Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549, 1569 (1 1 t h Cir. 1988)). Texas has a two-year limitations period for personal injury a c t io n s . Stanley v. Foster, 464 F.3d 565, 568 (5th Cir. 2006); TEX. CIV. PRAC. AND R EM. CODE ANN. § 16.003(a). The district court correctly determined that

G r e e n 's claim against Vu accrued more than two years before he filed his c o m p la in t in 2009. See Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir. 1 9 9 5 ). 2

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Date Filed: 08/27/2010

T o the extent that Green seeks to challenge the constitutionality of the T e x a s statutes under which he was convicted, either by raising a claim in his b r ie f or through motions, his efforts amount to an attack on his conviction. The d is t r ic t court correctly determined that a successful outcome for Green would im p ly the invalidity of his criminal conviction for practicing medicine without a l i c e n s e and causing psychological harm. See Heck, 512 U.S. at 486. Green's c la im s are therefore barred under Heck. See id. G r e e n has not demonstrated that he will present a nonfrivolous issue on a p p e a l. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the m o t io n to proceed IFP is denied, as are Green's motions to challenge the c o n s t it u t io n a lit y of federal and state statutes, and the appeal is dismissed as fr iv o lo u s . See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. B o t h the district court's dismissal of the complaint and the dismissal of t h is appeal as frivolous count as strikes under 28 U.S.C. § 1915(g). Green has p r e v io u s ly accumulated two strikes. See Green v. Grampre, No. 10-50230 (5th C ir . July 30, 2010). Because Green has now accumulated at least three strikes, h e is barred from proceeding IFP in any civil action or appeal filed while he is in c a r c e r a t e d or detained in any facility unless he is under imminent danger of s e r io u s physical injury. See § 1915(g). M O T I O N S DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IM P O S E D .

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