Nurnberg v. Dretke, et al

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 16, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-50769
Conference Calendar
MICHELLE NURNBERG,
Plaintiff-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION, Huntsville, TX; UNKNOWN
TEXAS DEPARTMENT OF CRIMINAL JUSTICE INMATE TRUST FUND OFFICIALS;
UNKNOWN TEXAS DEPARTMENT OF CRIMINAL JUSTICE HOBBY UNIT MAILROOM
OFFICIALS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:04-CV-56
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Michelle Nurnberg, Texas prisoner # 1049233, has filed a
motion to proceed in forma pauperis (IFP) on appeal from the
dismissal of her action under 42 U.S.C. § 1983. The district
court denied Nurnberg’s motion to appeal IFP and certified that
the appeal was not taken in good faith.

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No. 04-50769
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By moving to proceed IFP, Nurnberg is challenging the
district court’s certification. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997). Because the merits of Nurnberg’s
appeal are “inextricably intertwined” with the district court’s
certification that the appeal was not taken in good faith, we
determine both issues, denying IFP and dismissing the appeal.
See id.
By Nurnberg’s own admission, she was aware of both her
alleged injury and its causal connection to the defendants in
January 2002. Accordingly, Nurnberg’s lawsuit, filed in late
February 2004, was time-barred. Rodriguez v. Holmes, 963 F.2d
799, 803 (5th Cir. 1992). Nurnberg fails to present any valid
basis for tolling of the limitations period. Under these
circumstances, the district court did not err in dismissing
Nurnberg’s complaint for failure to state a claim. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). Nurnberg’s appeal is
DISMISSED as frivolous. See 5TH CIR. R. 42.2.
The district court’s dismissal of Nurnberg’s complaint for
failure to state a claim, and the dismissal of this appeal as
frivolous, both count as strikes under 28 U.S.C. § 1915(g).
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Nurnberg is CAUTIONED that if she accumulates three strikes, she
will no longer be allowed to proceed IFP in any civil action or
appeal filed while she is incarcerated or detained in any

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No. 04-50769
-3-
facility unless she is under imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.

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