### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50881 Summary Calendar

KELLEY A. MCFARLAND, Plaintiff-Appellant

v. WARDEN DAWN F. GROUNDS; T. J OHNSTON; SCHOO K; MORENO; UNKNOWN OTHERS, Defendants-Appellees

Appeal from the United States District Court for the Western District of Texas USDC No. 6:12-CV-115

Before JOLLY, ELROD, and GRAVES, Circuit Judges. PER CURIAM: * Kelley A. McFarland, Texas p ri s o n er # 3 37594, moves this c ourt t o proceed in forma pauperis ( IFP) i n t his appeal from the district court’s dismissal as frivolous of his 42 U.S.C. § 1983 complaint. The district court dismissed McFarland’s s uit and c e r t i f i ed that the a ppeal was not taken in good faith becau s e th e c omplaint was barred by the statute of limitations. McFarland’s IFP U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D February22, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-50881 Document: 00512153004 Page: 1 Date Filed: 02/22/2013No. 12-50881

motion is a c h a l l e n g e to the district court’s certification that his a ppeal is not taken in good faith. See Baugh v. Taylor , 117 F.3d 197, 202 (5th Cir. 1997). McFarland argues th a t h i s f e d e r a l c o m plaint should relate b ack, pursuant to Federal Rule of Civil Pr o c e d u re 15(c), to his prior state court action. He further contends that his injuries from the September 5, 2008 , i n c i d ent are continuing a nd that he s hould not be barred b y the statute o f l imitations. Rule15(c) allows an amendment to a pending complaint to relate back to the o riginal d ate of the filing of the pending pleading. See F E D
. R. C I V
. P. 15(c). It does not allow a subsequent complaint to relate back to a pleading filed i n a different case. See id. McFarland’s a rgument that he continues to suffer from injuries s ustained as a result of the September 5, 2008, incident is his attempt to invoke the “continuing t ort” doctrine, an exception to the statute of limitations in Texas. See Rogers v. A rdella Veigel Inter Vivos Trust N o. 2 , 162 S .W.3d 281, 290 (Tex. Ct. App. 2005). However, McFarland’s allegati o n i s n o t one of a continuing tort, but rather of a continuing injury. Se e R ogers , 162 S.W.3d at 290. Thus, the continuing t ort doctrine is not applicable to McFarland’s claim. See id. McFarland also argues that the d i strict cou r t erred in dismissing his

com p l a i n t without first conducting d iscovery and an e videntiary h earing. As McFarland has not shown that he could assert any viable c laims if given an opportunity for additional factual development, the district court did not err in dismissing the c omplaint w ithout conducting an e videntiary hearing. Cf. Eason v. Thaler , 14 F.3d 8, 10 (5th Cir. 1994). McFarland has not shown that he will present a n o n frivolous issue on appeal. See Howard v. King , 7 07 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion for leave to proceed IFP is d e n i e d and t he appeal is dismissed as frivolous. See Baugh , 117 F.3d at 202 n.24; 5 T H C I R
. R

. 42.2. This court’s d i s m i s s al of t his appeal as frivolous and the district court’s d i smissal of his complaint as f

r i v o l o u s count as two strikes under 28 U.S.C. § 1915(g).
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McFarland is cautioned that if he accumulates three strikes under § 1915(g), he will not be a b l e t o p r o c eed IFP in any civil action or a ppeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g). IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.

3 Case: 12-50881 Document: 00512153004 Page: 3 Date Filed: 02/22/2013