Gleason v. Pattison , 323 F. App'x 363 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 30, 2009
No. 08-30632
Conference Calendar Charles R. Fulbruge III
Clerk
JAMES W GLEASON
Plaintiff-Appellant
v.
GUFFEY PATTISON; SABINE PARISH; Warden DILLARD
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:08-CV-194
Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges.
PER CURIAM:*
James W. Gleason, Louisiana prisoner # 452467, appeals the dismissal as
frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1) of his time-
barred 42 U.S.C. § 1983 complaint. We review the district court’s dismissal for
abuse of discretion. See Gonzales v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir.
1998).
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-30632
No specified federal statute of limitations exists for § 1983 actions;
therefore, federal courts borrow the forum state’s personal injury limitations
period. Rodriguez v. Holmes, 963 F.2d 799, 803 (5th Cir. 1992). Louisiana Civil
Code article 3492’s one-year prescriptive period applies to § 1983 actions. Elzy
v. Roberson, 868 F.2d 793, 794 (5th Cir. 1989). Gleason argues pursuant to
Hardin v. Straub, 490 U.S. 536 (1989), that the one-year statute of limitations
should be tolled until he is released from custody.
Hardin held that a federal court applying a state statute of limitations to
an inmate’s federal civil rights action should give effect to the state’s statutory
provision tolling the limitations period for prisoners. 490 U.S. at 542-44.
Louisiana, however, does not have a statute to that effect. Lambert v. Toups,
745 So. 2d 730, 733 (La. Ct. App. 1999); Hampton v. Kroger, Co., 658 So. 2d 209,
211 (La. Ct. App. 1995). Gleason has therefore not shown the district court’s
time-bar determination to have been an abuse of discretion.
Gleason’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). It is therefore dismissed. See 5 TH
C IR. R. 42.2. The district court’s dismissal and the dismissal of his appeal count
as two strikes for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). Gleason is cautioned that if he accumulates three
strikes, he will no longer be allowed to proceed in forma pauperis in any civil
action or appeal filed while he is incarcerated or detained in any facility unless
he “is in imminent danger of serious physical injury.” § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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