IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50881

Summary Calendar

KELLEY A. MCFARLAND,

Plaintiff-Appellant

v.

WARDEN DAWN F. GROUNDS; T. JOHNSTON; SCHOOK; 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 prisoner # 337594, moves this court to proceed

in forma pauperis (IFP) in this appeal from the district court’s dismissal as

frivolous of his 42 U.S.C. § 1983 complaint. The district court dismissed

McFarland’s suit and certified that the appeal was not taken in good faith

because the complaint was barred by the statute of limitations. McFarland’s IFP

United States Court of Appeals

Fifth Circuit

F I L E D

February 22, 2013

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. 12-50881

motion is a challenge to the district court’s certification that his appeal is not

taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

McFarland argues that his federal complaint should relate back, pursuant

to Federal Rule of Civil Procedure 15(c), to his prior state court action. He

further contends that his injuries from the September 5, 2008, incident are

continuing and that he should not be barred by the statute of limitations.

Rule15(c) allows an amendment to a pending complaint to relate back to

the original date of the filing of the pending pleading. See FED. R. CIV. P. 15(c). 

It does not allow a subsequent complaint to relate back to a pleading filed in a

different case. See id. McFarland’s argument that he continues to suffer from

injuries sustained as a result of the September 5, 2008, incident is his attempt

to invoke the “continuing tort” doctrine, an exception to the statute of limitations

in Texas. See Rogers v. Ardella Veigel Inter Vivos Trust No. 2, 162 S.W.3d 281,

290 (Tex. Ct. App. 2005). However, McFarland’s allegation is not one of a

continuing tort, but rather of a continuing injury. See Rogers, 162 S.W.3d at

290. Thus, the continuing tort doctrine is not applicable to McFarland’s claim. 

See id.

McFarland also argues that the district court erred in dismissing his

complaint without first conducting discovery and an evidentiary hearing. As

McFarland has not shown that he could assert any viable claims if given an

opportunity for additional factual development, the district court did not err in

dismissing the complaint without conducting an evidentiary hearing. Cf. Eason

v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994).

McFarland has not shown that he will present a nonfrivolous issue on

appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his

motion for leave to proceed IFP is denied and the appeal is dismissed as

frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. This court’s

dismissal of this appeal as frivolous and the district court’s dismissal of his

complaint as frivolous 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 able to proceed IFP 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 § 1915(g).

IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING

ISSUED.

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