     Case: 10-50357 Document: 00511369173 Page: 1 Date Filed: 02/02/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 2, 2011
                                     No. 10-50357
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

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:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-50357 Document: 00511369173 Page: 2 Date Filed: 02/02/2011

                                   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); F ED. R. A PP. 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 C IR. 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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