Markus Green v. William Grampre

Case: 10-50230 Document: 00511190025 Page: 1 Date Filed: 07/30/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 30, 2010
No. 10-50230
Summary Calendar Lyle W. Cayce
Clerk
MARKUS A. GREEN,
Plaintiff-Appellant
v.
WILLIAM GRAMPRE; AVIANCA WONG,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:09-CV-865
Before KING, JOLLY, and GARZA, Circuit Judges.
PER CURIAM:*
Markus A. Green, Texas prisoner # 1118715, moves this court 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 the defendants
conspired with law enforcement officers to have him falsely arrested on a sexual
assault charge. Green also argued that Tex. Occ. Code §§ 165.152 and 165.153,
the 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 10-50230
license and causing psychological harm based on an incident for which he was
arrested in July 2001, were unconstitutional.
The district court determined that Green’s claims were barred by Heck v.
Humphrey, 512 U.S. 477 (1994). The district court further determined that, to
the extent that Green’s claims were not barred by Heck, they were barred by the
applicable two-year statute of limitations. 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 Grampre and
Wong are not state actors. He also contends that the Heck bar does not apply
because his claims concern his arrest for sexual assault, of which he was never
convicted. With regard to the district court’s determination that his claims were
time barred, Green argues that his claims concerning the unconstitutionality of
statutes are not time barred because the statutes are still in effect.
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 claims accrued more than two years before he filed his complaint in
December 2009. See Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir.
1995).
To the extent that Green seeks to challenge the constitutionality of the
Texas statutes under which he was convicted, his claims amount to an attack on
his conviction. The district court correctly determined that a successful outcome
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Case: 10-50230 Document: 00511190025 Page: 3 Date Filed: 07/30/2010
No. 10-50230
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 is Green’s motion 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 is
cautioned that if he accumulates three strikes under § 1915(g), 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).
MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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