Markus Green v. William Grampre, et al

Filing

Download PDF
Markus Green v. William Grampre, et al Doc. 0 Case: 10-50230 Document: 00511190025 Page: 1 Date Filed: 07/30/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-50230 S u m m a r y Calendar July 30, 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. W I L L I A M GRAMPRE; AVIANCA WONG, D e fe n d a n t s -A p p e lle e s A p p e a ls from the United States District Court fo r the Western District of Texas U S D C No. 1:09-CV-865 B e fo r e KING, JOLLY, and GARZA, Circuit Judges. P E R CURIAM:* M a r k u s A. Green, Texas prisoner # 1118715, moves this court to proceed i n forma pauperis (IFP) in this appeal from the dismissal of his complaint. In h is complaint, Green claimed under 28 U.S.C. § 1985(3) that the defendants c o n s p ir e d with law enforcement officers to have him falsely arrested on a sexual a s s a u lt charge. Green also argued that Tex. Occ. Code §§ 165.152 and 165.153, t h e statutes under which he was convicted for practicing medicine without a 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 10-50230 Document: 00511190025 Page: 2 No. 10-50230 Date Filed: 07/30/2010 lic e n s e and causing psychological harm based on an incident for which he was a r r e s t e d in July 2001, were unconstitutional. T h e district court determined that Green's claims were barred by Heck v. H u m p h r e y , 512 U.S. 477 (1994). The district court further determined that, to t h e extent that Green's claims were not barred by Heck, they were barred by the a p p lic a b le two-year statute of limitations. The district court dismissed Green's c o m p la in t as frivolous and denied leave to proceed IFP, certifying that the a p p e a l was not taken in good faith. Green's IFP motion is a challenge to that c e r t ific a t io n . See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). G r e e n argues that the Heck doctrine does not apply because Grampre and W o n g are not state actors. He also contends that the Heck bar does not apply b e c a u s e his claims concern his arrest for sexual assault, of which he was never c o n v ic t e d . With regard to the district court's determination that his claims were t im e barred, Green argues that his claims concerning the unconstitutionality of s t a t u t e s are not time barred because the statutes are still in effect. 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 claims accrued more than two years before he filed his complaint in D e c e m b e r 2009. See Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir. 1 9 9 5 ). T o the extent that Green seeks to challenge the constitutionality of the T e x a s statutes under which he was convicted, his claims amount to an attack on h is conviction. The district court correctly determined that a successful outcome 2 Case: 10-50230 Document: 00511190025 Page: 3 No. 10-50230 Date Filed: 07/30/2010 fo r Green would imply the invalidity of his criminal conviction for practicing m e d ic in e without a license and causing psychological harm. See Heck, 512 U.S. a t 486. Green's claims 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 is Green's motion 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 is c a u t io n e d that if he accumulates three strikes under § 1915(g), he will not be a b le to proceed IFP in any civil action or appeal filed while he is incarcerated or d e t a in e d in any facility unless he is under imminent danger of serious physical in ju r y . See § 1915(g). M O T I O N S DENIED; APPEAL DISMISSED; SANCTION WARNING IS S U E D . 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?