Otis Lee Fairley v. Hon. Bill Allain, Governor, State of Mississippi

GEE, Circuit Judge:

The district court dismissed Otis Lee Fairley’s 42 U.S.C. § 1983 petition as barred by the statute of limitations. He appeals and we affirm.

In September 1982, a Mississippi state court convicted the appellant of murder and sentenced him to life imprisonment. He was sent immediately to the Mississippi State Penitentiary at Parchman. He sought and received an order from Justice Robertson of the Mississippi Supreme Court in May 1983 directing that he be returned to the Hinds County Detention Center during the pendency of his appeal as mandated by Miss.Code.Ann. § 99-19-41.¹ Despite the order, the appellant remained at Parchman. He filed the present action in December 1984.

The district court applied the one-year statute of limitations to Fairley’s suit and accordingly dismissed it. See Gates v. Spinks, 771 F.2d 916 (5th Cir.1985), cert. denied, _ U.S. _, 106 S.Ct. 1378, 89 L.Ed.2d 603 (1986). Fairley argues that Gates should not be applied retroactively. As we explained in Young v. Biggers, 816 F.2d 216 (5th Cir.1987), we are bound to apply Gates retroactively. (Shelby v. McAdory, 781 F.2d 1053 (5th Cir.1986) requires that Gates be applied retroactively in § 1983 suit against law enforcement officials). Fairley’s action, therefore, was time-barred one year from the date when he knew or had reason to know of the injury that is the basis of his action. Justice Robertson issued the order directing Fairley’s transfer in May 1983. That is the relevant date for the purpose of the statute of limitations. Fairley filed this action in December 1984. Accordingly, it is untimely.

AFFIRMED.

1 . That section reads:

When any person shall be convicted of an offense and an appeal shall be taken to the supreme court, the sheriff shall, on an order for that purpose from the judge of the court where he was tried, or a judge of the supreme court, deliver such convict to the sheriff of the county where the supreme court is held, at the term thereof to which the appeal shall be made returnable, who shall safely keep such prisoner, subject to the order of the supreme court.