Guerrero v. Potter , 213 F. App'x 289 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 8, 2007
Charles R. Fulbruge III
Clerk
No. 06-20352
Summary Calendar
MIKE LEAL GUERRERO,
Plaintiff-Appellant,
versus
MELANIE POTTER; DR. LARRY LARGENT;
NOORALLAN MACKWANI; DR. NAIK KOKILA,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-881
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges
PER CURIAM:*
Mike Leal Guerrero, Texas prisoner # 567945, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint, in
which he raised claims of deliberate indifference to his serious
medical needs. The district court dismissed the complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous and for
failure to state a claim upon which relief could be granted. The
district court determined that Guerrero’s complaint was barred by
*
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this opinion should not be published and is not precedent except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. 06-20352
-2-
the applicable limitations period and, alternatively, that
Guerrero was not entitled to relief on the merits of his claim.
Guerrero’s civil rights complaint was not filed within two
years of the date that he learned of his injury. Owens v. Okure,
488 U.S. 235, 249-50 (1989); Piotrowski v. City of Houston, 51
F.3d 512, 516 (5th Cir. 1995); TEX. CIV. PRAC. AND REM. CODE
§ 16.003(a). His previous complaint challenging the actions of
the defendants was dismissed voluntarily pursuant to Guerrero’s
motion and thus did not toll the limitations period. See Burge
v. Parish of St. Tammany, 996 F.2d 786, 787 (5th Cir. 1993);
Guaranty County Mut. Ins. Co. v. Reyna, 700 S.W.2d 325, 327 (Tex.
App. 1985).
Guerrero’s appeal is without arguable merit and is
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is dismissed. See
5TH CIR. R. 42.2. Guerrero is cautioned that the dismissal of
this appeal as frivolous, and the district court’s dismissal of
his complaint as frivolous, count as strikes under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). He is cautioned that if he accumulates three strikes
under § 1915(g), he will not be able to proceed in forma pauperis
(IFP) 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 § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.