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Henry v. Bd Pardons & Paroles ( 2003 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20801
Summary Calendar
JOHN O’NEAL HENRY,
Plaintiff-Appellant,
versus
BOARD OF PARDONS AND PAROLES; TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-279
--------------------
January 9, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
John O’Neal Henry, Texas prisoner # 324238, has appealed the
district court’s order dismissing his civil rights action for
failure to state a claim upon which relief can be granted.   See
FED. R. CIV. P. 12(b)(6); see also
    28 U.S.C. § 1915
    (e)(2)(B)(ii).
Henry contends that the defendants violated Title II of the
Americans with Disabilities Act by failing to accommodate his
hearing impairment in connection with a prison substance abuse
program.   The district court dismissed this claim because the
*
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this opinion should not be published and is not precedent except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. 02-20801
-2-
defendants are immune from suit under the Eleventh Amendment.
“The Eleventh Amendment bars an individual from suing a state in
federal court unless the state consents to suit or Congress has
clearly and validly abrogated the state’s sovereign immunity.”
Perez v. Region 20 Educ. Service Center,
    307 F.3d 318
    , 326 (5th
Cir. 2002).   This court has held that Congress did not abrogate
validly the states’ Eleventh Amendment immunity in enacting Title
II of the ADA.   Reickenbacker v. Foster,
    274 F.3d 974
    , 979-83
(5th Cir. 2001) (extending Board of Trustees of University of
Alabama v. Garrett,
    531 U.S. 356
    , 359-68 (2001)).     Henry does not
contend that Texas has waived its Eleventh Amendment immunity and
the exception to Eleventh Amendment immunity provided by Ex parte
Young,
    209 U.S. 123
    , 159-60 (1908), is not available to Henry
because he sued state agencies only.    See Reickenbacker,
    274 F.3d at 
    976 n.9 (citing Aguilar v. Texas Dept. of Criminal Justice,
    160 F.3d 1052
    , 1053 (5th Cir. 1998)).     Henry’s ADA claim was
dismissed properly under the rule in Reickenbacker.
Henry contends that his rights under the Ex Post Facto
Clause were violated because he was required to pay a supervisory
fee while on parole between 1990 and 1992.     The district court
held that this claim is time-barred.    “The statute of limitations
for a suit brought under § 1983 is determined by the general
statute of limitations governing personal injuries in the forum
state.”   Piotrowski v. City of Houston,
    237 F.3d 567
    , 576 (5th
Cir.), cert. denied,
    122 S. Ct. 53
     (2001).     In Texas, personal
No. 02-20801
-3-
injury actions are subject to a two-year limitations period.
See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West 2002).     Henry
had two years to file suit from the date his Ex Post Facto claim
accrued.   See Piotrowski,
    237 F.3d at 576
    .     “Accrual of a § 1983
claim is governed by federal law: Under federal law, the
limitations period begins to run the moment the plaintiff becomes
aware that he has suffered an injury or has sufficient
information to know that he has been injured.”      Id. (internal
quotation marks and brackets omitted).      The district court
concluded that Henry’s claim accrued in 1992, when Henry’s parole
was revoked.    Henry’s complaint was filed more than two years
later, on January 24, 2001.    Henry contends on appeal that his
claim did not accrue until 1999, the last time the Texas Board of
Pardons and Paroles denied him release on parole.      This argument
is without merit because this event is not pertinent to the Ex
Post Facto claim.
Because the appeal is frivolous, it is dismissed.      See
Howard v. King,
    707 F.2d 215
    , 219-20 (5th Cir. 1983); 5TH CIR.
R. 42.2.   The dismissal of this appeal as frivolous counts as a
strike for purposes of
    28 U.S.C. § 1915
    (g).      Ordinarily, the
district court’s dismissal of the complaint under
    28 U.S.C. § 1915
    (e)(2)(B)(ii) would also count as a strike under
    28 U.S.C. § 1915
    (g).     See Adepegba v. Hammons,
    103 F.3d 383
    , 388 (5th Cir.
1996).   In this case, however, this court remanded the case to
the district court, encouraging Henry to proceed, and the law
No. 02-20801
-4-
changed while the case was on remand.     Accordingly, the dismissal
of Henry’s complaint by the district court pursuant to
    28 U.S.C. § 1915
    (e)(2)(B)(ii) shall not be regarded as a strike under
    28 U.S.C. § 1915
    (g).
Henry has at least one other strike.     See Henry v. Texas
Department of Criminal Justice, No. 00-20377 (5th Cir. Oct. 8,
2000) (unpublished).   He now has two strikes.   We caution Henry
that once he accumulates three strikes, he will not be permitted
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.     See
    28 U.S.C. § 1915
    (g).
APPEAL DISMISSED; SANCTION WARNING GIVEN.