Markus Green v. Lisa Vu , 393 F. App'x 225 ( 2010 )

Case: 10-50223 Document: 00511217506 Page: 1 Date Filed: 08/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 27, 2010
No. 10-50223
Summary Calendar Lyle W. Cayce
Clerk
MARKUS A GREEN,
Plaintiff-Appellant
v.
LISA VU,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:09-CV-913
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Markus A. Green, Texas inmate # 1118715, moves to proceed in forma
pauperis (IFP) in this appeal from the dismissal of his complaint. In his
complaint, Green claimed under 28 U.S.C. § 1985(3) that defendant Lisa Vu
conspired with law enforcement officers to violate his civil rights by making false
sexual assault charges which resulted in his arrest and indictment. Green, who
was convicted of practicing medicine without a license and causing psychological
harm, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-50223 Document: 00511217506 Page: 2 Date Filed: 08/27/2010
No. 10-50223
that the district court certify the question of the constitutionality of sections
165.152 and 165.153 of the Texas Occupations Code, the statutes that
criminalize the practice of medicine without a license, to the Texas Attorney
General pursuant to 18 U.S.C. § 2403(b).
The district court determined that Green’s challenge to the
constitutionality 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,
to the extent that Green’s claims against Vu were not barred by Heck, they were
barred by the applicable statute of limitations given that Green was complaining
of events that occurred in 2001 and 2002 and Green had not filed his complaint
until 2009. The district court dismissed Green’s complaint as frivolous and
denied leave to proceed IFP, certifying that the appeal was not taken in good
faith. Green’s IFP motion is a challenge to that certification. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Green argues that the Heck doctrine does not apply because he was not
convicted of an offense that involved Vu. Green contends that his appeal is
timely, but he does not appear to realize that his claim against Vu was dismissed
on the grounds that it was barred by the applicable statute of limitations.
Because there is no federal statute of limitations for actions brought
pursuant to § 1985(3), federal courts borrow the forum state’s general personal
injury 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
grounds, Larkin v. Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549, 1569
(11th Cir. 1988)). Texas has a two-year limitations period for personal injury
actions. Stanley v. Foster, 464 F.3d 565, 568 (5th Cir. 2006); T EX. C IV. P RAC. AND
R EM. C ODE A NN. § 16.003(a). The district court correctly determined that
Green’s claim against Vu accrued more than two years before he filed his
complaint in 2009. See Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir.
1995).
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No. 10-50223
To the extent that Green seeks to challenge the constitutionality of the
Texas statutes under which he was convicted, either by raising a claim in his
brief or through motions, his efforts amount to an attack on his conviction. The
district court correctly determined that a successful outcome for Green would
imply the invalidity of his criminal conviction for practicing medicine without a
license and causing psychological harm. See Heck, 512 U.S. at 486. Green’s
claims are therefore barred under Heck. See id.Green has not demonstrated that he will present a nonfrivolous issue on
appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the
motion to proceed IFP is denied, as are Green’s motions to challenge the
constitutionality of federal and state statutes, and the appeal is dismissed as
frivolous. See Baugh, 117 F.3d at 202 n.24; 5 TH C IR. R. 42.2.
Both the district court’s dismissal of the complaint and the dismissal of
this appeal as frivolous count as strikes under 28 U.S.C. § 1915(g). Green has
previously accumulated two strikes. See Green v. Grampre, No. 10-50230 (5th
Cir. July 30, 2010). Because Green has now accumulated at least three strikes,
he is barred from proceeding 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).
MOTIONS DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.
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