Green v. Grampre, 073010 FED5, 10-50230

• Docket Nº: 10-50230
• Opinion Judge: PER CURIAM:
• Party Name: MARKUS A. GREEN, Plaintiff-Appellant v. WILLIAM GRAMPRE; AVIANCA WONG, Defendants-Appellees
• Judge Panel: Before KING, JOLLY, and GARZA, Circuit Judges.
• Case Date: July 30, 2010
• Court: United States Courts of Appeals, Court of Appeals for the Fifth Circuit

MARKUS A. GREEN, Plaintiff-Appellant

v.

WILLIAM GRAMPRE; AVIANCA WONG, Defendants-Appellees

No. 10-50230

United States Court of Appeals, Fifth Circuit

July 30, 2010

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 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); Tex. Civ. Prac...