John Conroy v. Jim Rider , 575 F. App'x 509 ( 2014 )

Case: 13-11054 Document: 00512706759 Page: 1 Date Filed: 07/22/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-11054
FILED
July 22, 2014
Summary Calendar
Lyle W. Cayce
Clerk
JOHN ALAN CONROY,
Plaintiff-Appellant
v.
JIM RIDER; DON WILLIAMS; UNIDENTIFIED TEXAS RANGER,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:13-CV-149
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
John Alan Conroy, federal prisoner # 42054-177, appeals the dismissal
of this 42 U.S.C. § 1983 action, which was filed in August 2013. The district
court dismissed the action as time barred and as frivolous. Because the district
court cited both 28 U.S.C. § 1915 and 28 U.S.C. § 1915A as authority for its
dismissal, our review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th
Cir. 2005).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-11054 Document: 00512706759 Page: 2 Date Filed: 07/22/2014
No. 13-11054
According to Conroy, the defendants violated his constitutional rights at
the time of his arrest in July 2010. He contends that he did not learn of the
legal basis for this § 1983 action until November 2011, when his trial attorney
provided him with information obtained during the course of discovery. Thus
Conroy asserts, he was not required to bring this suit until November 2013.
He does not contend that he was ignorant of the facts of his claim when they
occurred.
The two-year statute of limitations established by Texas law governs this
action. See Wallace v. Kato, 549 U.S. 384, 387-88 (2007); Stanley v. Foster, 464
F.3d 565, 568 (5th Cir. 2006). However, federal law determines the time at
which the cause of action accrued. See Wallace, 549 U.S. at 388. Under federal
law, the limitations period in a § 1983 action begins to run when “the plaintiff
has a complete and present cause of action.” Id. (internal quotation marks and
citation omitted); see also Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th
Cir. 2001). A plaintiff need not be aware that a legal cause of action exists; he
need only know the facts that would support a claim. Piotrowski v. City of
Houston, 51 F.3d 512, 516 (5th Cir. 1995).
Conroy’s cause of action accrued at the time the alleged violations
occurred in July 2010. The limitations period therefore expired in July 2012,
over a year before Conroy filed this suit. Precedent forecloses Conroy’s
argument that his cause of action did not accrue until his attorney provided
him information in November 2011 and he knew that he had a legal basis for
suit. See Wallace, 549 U.S. at 388; Piotrowski, 237 F.3d at 576; Piotrowski, 51
F.3d at 516. This appeal thus “relies on an indisputably meritless legal
theory,” lacks any arguable basis, and is frivolous. Taylor v. Johnson, 257 F.3d
470, 472 (5th Cir. 2001). We therefore dismiss it. See 5TH CIR. R. 42.2.
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Case: 13-11054 Document: 00512706759 Page: 3 Date Filed: 07/22/2014
No. 13-11054
The district court’s dismissal of Conroy’s complaint and our dismissal of
this appeal as frivolous each counts as a strike under § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Conroy is cautioned that if
he receives a third strike under § 1915(g) he will not 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 under imminent danger of serious
physical injury.” § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.
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