Bateman v. Texas Board of Pardons & Paroles ( 2004 )

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-21159
Conference Calendar
WILLIE GARY BATEMAN,
Plaintiff-Appellant,
versus
TEXAS BOARD OF PARDONS & PAROLES;
MEMBERS OF TEXAS BOARD OF PARDONS AND PAROLES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CV-4376
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Willie Gary Bateman, Texas prisoner #426450, appeals the
district court’s sua sponte dismissal of his pro se, in forma
pauperis 42 U.S.C. § 1983 complaint as frivolous and for failure
to state a claim under 28 U.S.C. § 1915(e)(2)(B). A district
court may dismiss a 42 U.S.C. § 1983 complaint sua sponte under
28 U.S.C. § 1915(e)(2)(B) when the complaint demonstrates that
the claims asserted are barred by the applicable statute of
*
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this opinion should not be published and is not precedent except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.
No. 03-21159
-2-
limitations. Gonzalez v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir.
1998).
Bateman’s cause of action accrued on April 7, 1999, when he
knew or had reason to know of the injury which formed the basis
of his complaint. See Pete v. Metcalfe, 8 F.3d 214, 217 (5th
Cir. 1993); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a)(Vernon
2003). Bateman filed his complaint in October 2003. Under these
circumstances, the district court did not err in dismissing
Bateman’s complaint as frivolous and for failure to state a
claim. See Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999);
Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998).
Accordingly, Bateman’s appeal is DISMISSED as frivolous. See 5TH
CIR. R. 42.2. Bateman’s motion for the appointment of counsel is
also DENIED.
Bateman is cautioned that the district court’s dismissal of
his 42 U.S.C. § 1983 complaint as frivolous and this court’s
dismissal of the appeal as frivolous both count as strikes
pursuant to 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). Bateman is warned that once he
accumulates three strikes, he may not proceed in forma pauperis
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 28 U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; MOTION DENIED; SANCTIONS
WARNING ISSUED.