Johnson v. Alford ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40022
Conference Calendar
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VANCE LEVELL JOHNSON,
Plaintiff-Appellant,
versus
JIMMY E. ALFORD ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:94-CV-409
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June 30, 1995
Before JONES, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Vance Johnson alleged that the defendants violated his
constitutional rights by enacting several administrative
lockdowns against his cell block. Johnson alleged that he was
released from the last lockdown on March 16, 1992. Johnson filed
his action around June 6, 1994.
In 42 U.S.C. § 1983 suits, federal courts borrow the forum
state's general or residual personal injury limitations period
and any applicable state tolling provisions. In Texas, the
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-40022
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applicable period is two years. Rodriguez v. Holmes, 963 F.2d
799, 803 (5th Cir. 1992). However, federal law controls when the
cause of action accrues. Under the federal standard, the statute
of limitations begins to run from the moment the plaintiff knows
or has reason to know that he has been injured and who has
inflicted the injury. Moore v. McDonald, 30 F.3d 616, 620-21
(5th Cir. 1994). Because Johnson knew or should have known of
his alleged constitutional injuries and the people responsible
for them by March 16, 1992, at the latest, the limitations period
for filing suit regarding his grievances ended on March 16, 1994.
See id.Johnson states that the statute of limitations should be
tolled because he originally filed a suit regarding the alleged
violations surrounding the lockdowns on August 17, 1993.
However, Johnson admits that he requested dismissal of his August
17, 1993 suit. Johnson also alleges that he made a good faith
effort to meet the statute of limitations.
There are no applicable suspension or tolling provisions
which would apply to Johnson's situation. Under Texas law, a
dismissal is the equivalent of a suit having never been filed.
Cunningham v. Fox, 879 S.W.2d 210, 212 (Tex. Ct. App. 1994). If
a suit is dismissed, limitations run from the time the cause of
action accrued, and the limitations is not tolled for any new
pleading filed. Id. The two-year limitations period had been
expired by at least two and one-half months before Johnson filed
his action. The district court did not err in dismissing the
suit with prejudice.
No. 95-40022
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AFFIRMED.