Daniel Hudson v. Lubbock Police Department

Case: 16-11185 Document: 00514046752 Page: 1 Date Filed: 06/23/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11185 FILED
June 23, 2017
Lyle W. Cayce
DANIEL PAUL HUDSON, Clerk
Plaintiff-Appellant
v.
LUBBOCK POLICE DEPARTMENT; OFFICER NFN MCEOWON;
COVENANT MEDICAL CENTER,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:16-CV-162
Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
Daniel Paul Hudson, Texas prisoner # 2082671, moves for leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C.
§ 1983 suit. The district court dismissed the suit as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B)(i) because Hudson’s § 1983 claims were time barred.
The district court further denied Hudson leave to proceed IFP on appeal,
certifying that this appeal was not taken in good faith. By moving to proceed
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11185 Document: 00514046752 Page: 2 Date Filed: 06/23/2017
No. 16-11185
IFP here, Hudson is challenging the district court’s certification decision. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Hudson contends that his § 1983 claims were not for personal injury and
that the district court therefore erred in subjecting them to the two-year
limitations period applicable to personal injury claims in Texas. The district
court correctly concluded that Hudson’s § 1983 claims were untimely, as
Texas’s two-year statute of limitations under TEX. CIV. PRAC. & REM. CODE
§ 16.003(a) applies to § 1983 claims in Texas. See King-White v. Humble Indep.
Sch. Dist., 803 F.3d 754, 761 (5th Cir. 2015). The instant appeal is without
arguable merit and is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24;
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2.
The district court’s dismissal of Hudson’s § 1983 suit and our dismissal
of this appeal as frivolous both count as strikes for purposes of § 1915(g). See
Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015); Adepegba v. Hammons,
103 F.3d 383, 388 (5th Cir. 1996). Hudson is warned that if he accumulates
three strikes, he will not be able to proceed 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).
MOTION FOR LEAVE TO PROCEED IFP DENIED; APPEAL
DISMISSED; SANCTION WARNING ISSUED.
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