IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50357

Summary Calendar

PH.D. CATHERINE L. MARSTON,

Plaintiff–Appellant,

v.

BRAD LIVINGSTON, Executive Director of Texas Department of Criminal

Justice; WARDEN KAREN STRONG; LORIE WILLS, former LM Warden;

GILBERT CAMPUZANA, Director of Rebion VI of Texas Department of

Criminal Justice; ROSSINA VALLADARES, Clinical Administrator for the Lane

Murray Unit; NURSE PRACTITIONER JOSEPH SHOLLENBARGER;

MEDICAL DOCTOR VANCY BRIDGES; NURSE PRACTITIONER DALE

DELLENGER; REGISTERED NURSE DIANE TADLOCH; CHARLOTTE

WALTERS; LIEUTENANT WANDA FUSSELL; OWEN MURRAY, Executive

Director of Clinical Services; UNIT RISK MANAGEMENT DEPARTMENT OF

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Huntsville; OTHER

DEFENDANTS TO BE ANNOUNCED,

Defendants–Appellees.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:08-CV-291

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

*

United States Court of Appeals

Fifth Circuit

F I L E D

February 2, 2011

Lyle W. Cayce

Clerk

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. 10-50357

Catherine L. Marston, Texas prisoner # 1306127, acting pro se, moves for

leave to appeal in forma pauperis (IFP) from the entry of summary judgment

dismissing a complaint alleging civil rights violations and claims under the

Americans With Disabilities Act (ADA). The district court denied Marston’s IFP

motion and certified that the appeal is not taken in good faith.

The complaint alleged that Marston suffers from repetitive strain injury.

The defendants have allegedly acted with deliberate indifference to Marston’s

serious medical needs, violated her rights under the Americans With Disabilities

Act (ADA) by failing to provide appropriate medical treatment and

accommodations for her disability, and hindered her ability to file grievances

over her mistreatment. Marston has allegedly been harassed and convicted of

disciplinary violations as a result of her efforts to obtain proper medical care and

a more appropriate work assignment. The district court found that the

summary judgment evidence refuted the claim of deliberate indifference; that

Marston had failed to allege facts supporting a claim of retaliation; and that

there was no evidence that Marston suffered a disability protected by the ADA.

We construe Marston’s motion to proceed IFP as a challenge to the district

court’s certification that the appeal is frivolous. See Baugh v. Taylor, 117 F.3d

197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3). We ask

only whether the appeal involves meritorious legal issues. Howard v. King, 707

F.2d 215, 220 (5th Cir. 1983).

Although the defendants’ motion for summary judgment, supported by

competent evidence, was pending before the district court for over ten months,

Marston did not file a response to the motion. She argues on appeal that a filing

would have been pointless because the district court was prejudiced, and she

notes that, in lieu of filing a responsive pleading, she reported the district court’s

collusion with the Texas Department of Criminal Justice to the Federal Bureau

of Investigation and the United States Department of Justice. Marston does not

address the district court’s reasons for dismissing her complaint. As Marston

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No. 10-50357

fails to challenge any factual or legal aspect of the district court’s disposition of

the claims raised in her complaint or the certification that her appeal is not

taken in good faith, she has abandoned the critical issue of her appeal. See

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987). Thus, the appeal lacks arguable merit. See Howard, 707 F.2d at 220.

Accordingly, Marston’s IFP motion is DENIED, and the appeal is DISMISSED

as frivolous. See 5th CIR. R. 42.2; Baugh, 117 F.3d at 202 n.24.

The dismissal of this appeal counts as a strike under 28 U.S.C. § 1915(g).

See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Marston is

CAUTIONED if she accumulates three strikes, she will not be allowed to proceed

IFP in any civil action or appeal filed while she is detained or incarcerated in

any facility unless she is under imminent danger of serious physical injury.

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