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Rheashad Lott v. E. Oseguera ( 2020 )


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  •      Case: 19-10314      Document: 00515375622         Page: 1    Date Filed: 04/08/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-10314
Fifth Circuit
FILED
April 8, 2020
RHEASHAD LAMAR LOTT,                                                     Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
E. OSEGUERA; JOHN BRIMMER,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-126
Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
Rheashad Lamar Lott, Texas prisoner # 1596571, moves for leave to
proceed in forma pauperis (IFP) following the dismissal of his
    42 U.S.C. § 1983
    complaint in which he alleged that Grand Prairie Police Department detectives
falsely arrested him without a valid warrant and without probable cause. The
district court sua sponte dismissed the complaint under
    28 U.S.C. §§ 1915
    (e)(2)(B) and 1915A(b) based on a determination that it was not timely
filed.       We construe Lott’s motion as a challenge to the district court’s
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: 19-10314     Document: 00515375622     Page: 2   Date Filed: 04/08/2020
No. 19-10314
certification that the appeal is not taken in good faith. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997).
Lott does not challenge the applicability of a two-year limitations period;
nor does he deny that the alleged false arrest occurred in May 2008 and that
his § 1983 complaint was filed in January 2019. Instead, he maintains that he
is entitled to equitable tolling of the limitations period because he did not know
of the existence of the cause of action until his attorney produced the State’s
file in November 2017. Lott, however, has failed to establish that he actively
pursued his judicial remedies or otherwise acted diligently. See Wallace v.
Kato,
    549 U.S. 384
    , 394-96 (2007); Lawrence v. Florida,
    549 U.S. 327
    , 336
(2007); Hand v. Stevens Transp., Inc. Emp. Benefit Plan,
    83 S.W.3d 286
    , 293
(Tex. App. 2002). The district court therefore did not err or abuse its discretion
in dismissing Lott’s complaint as frivolous because it is time barred.
This appeal lacks arguable legal merit and is, therefore, frivolous. See
Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983). Lott’s motion to proceed
IFP is DENIED, and we DISMISS his appeal as frivolous. See Baugh,
    117 F.3d at 
    202 n.24; 5TH CIR. R. 42.2.
The district court’s dismissal of the complaint and this court’s dismissal
of his appeal as frivolous count as two strikes under § 1915(g). See Coleman v.
Tollefson,
    135 S. Ct. 1759
    , 1763-64 (2015); Adepegba v. Hammons,
    103 F.3d 383
    , 388 (5th Cir. 1996). A prior § 1983 action filed by Lott was dismissed as
frivolous and for failure to state a claim pursuant to § 1915(e). See Lott v.
Director, TDCJ-CID, No. 1:17-cv-528 (E.D. Tex. Sept. 13, 2018).             That
dismissal also counts as a strike under § 1915(g). See Adepegba, 103 F.3d at
387-88. Because he now has three strikes, Lott is BARRED from proceeding
IFP in any civil action or appeal filed in a court of the United States while he
is incarcerated or detained in any facility unless he is under imminent danger
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Case: 19-10314    Document: 00515375622     Page: 3   Date Filed: 04/08/2020
No. 19-10314
of serious physical injury. See § 1915(g); Brewster v. Dretke,
    587 F.3d 764
    , 770
(5th Cir. 2009).
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