UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-20987
Summary Calendar
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LARRY DEAN MARTIN,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE;
UNIVERSITY OF TEXAS MEDICAL BRANCH;
MARY MOSLEY, Physician Assistant;
B. M. VINCENT, M.D.; JESSE FRANKLIN,
PHOP Coordinator,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(H-99-CV-4113)
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June 29, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Larry Dean Martin, a Texas prisoner (# 456343), appeals, pro
se, the district court’s order dismissing his in forma pauperis and
pro se 42 U.S.C. § 1983 civil rights action. Martin also made
claims under the Americans with Disabilities Act (ADA). Pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii), the dismissal was based upon the
failure to state a claim upon which relief may be granted. And,
*
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this opinion should not be published and is not precedent except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.
the dismissal followed a hearing pursuant to Spears v. McCotter,
766 F.2d 179 (5th Cir. 1985).
Martin has failed to challenge the district court’s implicit
conclusion that any civil rights claims concerning the period prior
to 17 November 1997 — two years before he submitted his complaint
for mailing — were barred by the applicable two-year Texas statute
of limitations for personal injury. See TEX. CIV. PRAC. & REM. CODE
ANN. § 16.003(a) (West 1999); Owens v. Okure, 488 U.S. 235, 251
(1989); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987). Almost all of the incidents at issue
occurred before 17 November 1997. As for the few incidents
concerning the period after 17 November 1997, Martin has failed to
show that the district court erred in concluding he had failed to
state a claim upon which relief could be granted. Berry v. Brady,
192 F.3d 504, 507 (5th Cir. 1999); see Woods v. Edwards, 51 F.3d
577, 583 (5th Cir. 1995) (to establish § 1983 claim, “plaintiff
must identify defendants who were either personally involved in the
constitutional violation or whose acts are causally connected to
the constitutional violation alleged”). And, although state
prisons are subject to the ADA, see Hall v. Thomas, 190 F.3d 693,
696 (5th Cir. 1999), Martin has made no serious effort to satisfy
its statutory elements. See 42 U.S.C. § 12102(2).
The district court did not abuse its discretion by failing to
solicit an amendment to Martin’s complaint, because Martin has had
2
sufficient opportunities to plead his case. See Jacquez v.
Procunier, 801 F.2d 789, 793 (5th Cir. 1986). The district court
also did not clearly abuse its discretion in failing to appoint
Martin an attorney. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir.
1987).
The district court’s dismissal of Martin’s complaint counts as
one “strike” for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Martin is cautioned
that, once he accumulates three strikes, he may not proceed in
forma pauperis 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 28 U.S.C.
§ 1915(g).
AFFIRMED
3
Martin v. TX Dept Cr Justice
Combined Opinion