Hicks v. Ivy ( 2023 )

Case: 23-40311 Document: 00516975537 Page: 1 Date Filed: 11/21/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 21, 2023
No. 23-40311 Lyle W. Cayce
Summary Calendar Clerk
____________
Robert Lee Hicks,
Plaintiff—Appellant,
versus
Lieutenant Ivy; Sergeant Loudini; Sergeant Rodriguez;
Sergeant Sikes; Doctor Haney; 3 to 4 Officers,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:23-CV-47
______________________________
Before Wiener, Stewart, and Douglas, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Robert Lee Hicks, a Texas inmate proceeding pro
se and in forma pauperis, appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 action as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B). We review
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-40311
that dismissal for an abuse of discretion. Brewster v. Dretke, 587 F.3d 764, 767
(5th Cir. 2009).
Hicks first contends that the magistrate judge lacked jurisdiction to
dismiss his complaint because he did not consent to proceed before a
magistrate judge. He also faults the district court for failing to address tha
jurisdictional claim. But, Hicks is mistaken. The case was referred to the
magistrate judge by the district court for a report containing factual findings,
legal conclusions, and a recommendation for a dispositive ruling, pursuant to
§ 636(b) and the local standing rules. See 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b)(1). Hicks was then given the opportunity to object to the
magistrate judge’s findings and conclusions prior to the district court’s entry
of a dispositive order. See § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2). Hick’s
consent to such reference was not required, compare § 636(c). Also, his
contention to the contrary is meritless.
Hicks next challenges the district court’s dismissal of his lawsuit as
frivolous because of the untimely filing of the complaint. Hicks contends that
his lawsuit was in fact timely filed. This contention is also unavailing. As the
district court found, with the benefit of tolling while Hicks pursued his
administrative remedies, the statute of limitations did not begin to run until
February 3, 2021, and it expired two years later, on February 3, 2023. See
Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999); see also Price v. City of
San Antonio, 431 F.3d 890, 892 (5th Cir. 2005); Rodriguez v. Holmes, 963 F.2d
799, 805 (5th Cir. 1992). Even accepting as true Hicks’s assertion that he
placed his complaint in the prison mail system for filing on February 22,
2023, the complaint was untimely filed.
For the first time on appeal, Hicks asserts that equitable tolling applies
to save his suit. Assuming arguendo that this court should consider the newly
raised claim, cf. Leverette v. Louisville Ladder Co., 183 F.3d 339, 341-42 (5th
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No. 23-40311
Cir. 1999); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993), Hicks has not
shown that he is entitled to equitable tolling.
According to Hicks, the prison law library does not contain a copy of
the Texas Department of Criminal Justice Grievance Operations Manual,
thereby preventing him from learning the rules related to filing and pursuing
a grievance. However, the record shows that the absence of the grievance
operations manual did not affect Hick’s ability to file or pursue his
grievances. Following the denial of his step-two grievance, Hicks failed to
take any additional action to pursue his claims before the limitations period
expired. He fails to explain his lack of action and, more specifically, fails to
explain how the absence of the grievance operations manual prevented him
from filing his § 1983 lawsuit within the two-year limitations period following
the denial of his step-two grievance. See Ramirez v. City of San Antonio, 312
F.3d 178, 183 (5th Cir. 2002); Smith v. J-Hite, Inc., 127 S.W.3d 837, 843 (Tex.
App. 2003). His own negligence in failing to pursue his rights does not
warrant equitable tolling. See Hand v. Stevens Transp., Inc. Empl. Benefit Plan,
83 S.W.3d 286, 293 (Tex. App. 2002). Neither does Hicks contend that he
was actively misled or prevented in some extraordinary way from filing his
lawsuit. Thus, he has failed to demonstrate that equitable tolling applies. See
Ramirez, 312 F.3d at 183; see also Hand, 83 S.W.3d at 293.
The district court’s judgment is therefore affirmed, and its dismissal
of Hicks’s complaint as frivolous counts as a strike under 28 U.S.C. §
1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996),
abrogated in part on other grounds, Coleman v. Tollefson, 575 U.S. 532, 537
(2015). Hicks also has at least one prior strike. See Hicks v. Pinney, No. 6:21-
CV-00171-ADA (dismissed as frivolous May 24, 2021). He is therefore
warned that, if he accumulates three strikes, he may not thereafter proceed
IFP in any civil action or appeal filed while he is incarcerated or detained in
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any facility unless he is under imminent danger of serious physical injury. See
28 U.S.C. § 1915(g).
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