Sanderson v. American General Life & Accident Insurance

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 3, 2006
Charles R. Fulbruge III
Clerk
No. 04-11334
Summary Calendar
ALVIN S SANDERSON
Plaintiff - Appellant
v.
AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE CO
Defendant - Appellee
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Appeals from the United States District Court
for the Northern District of Texas
USDC No. 7:04-CV-74
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Before KING, DeMOSS and PRADO, Circuit Judges.
PER CURIAM:*
Alvin S. Sanderson, Texas prisoner # 250283, moves for leave
to proceed in forma pauperis (IFP) in this appeal from the
district court’s dismissal of his complaint as time-barred.
Invoking diversity jurisdiction, Sanderson sued American General
Life & Accident Insurance Co. (American General) for fraud,
fraudulent inducement, fraudulent concealment, fraudulent
misrepresentation, and breach of contract, relating to
Sanderson’s failure to receive payment of insurance proceeds from
*
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this opinion should not be published and is not precedent except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. 04-11334
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four life insurance policies for which he was named the primary
beneficiary. Sanderson argues that: (1) the magistrate judge
lacked authority to issue the second report and recommendation;
(2) the district court erred by failing to conduct a de novo
review of the record and by failing to address the objections to
the magistrate judge’s second report; (3) the district court did
not provide Sanderson with a sufficient opportunity to develop
his fraudulent concealment claim; and (4) Sanderson’s motion to
alter the judgment was timely filed.
Even if we consider, arguendo, Sanderson’s objections to the
second report and his motion to alter the judgment, he has not
raised a nonfrivolous issue for appeal. The magistrate judge had
the authority to issue the second report and recommendation. See
28 U.S.C. § 636(b). The adoption of this report prior to
Sanderson’s filing his objections to the report did not prejudice
Sanderson because his objections did not raise any nonfrivolous
issues. See McGill v. Goff, 17 F.3d 729, 731 (5th Cir. 1994),
overruled on other grounds, Kansa Reins. Corp. v. Congressional
Mortgage Co., 20 F.3d 1362, 1373-74 (5th Cir. 1994). Sanderson
admittedly was aware that he had not received payment of the life
insurance proceeds in June 1999, and he suspected wrongdoing at
that point, going so far as to ask American General to
investigate possible criminal activity. American General stated
that it had sent the insurance proceeds payable to Sanderson, to
Sanderson’s then wife, Margot Sanderson, as Sanderson had
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requested. In September 1999, Sanderson received purported
copies of the cancelled checks showing the disbursement of the
insurance proceeds. By that time, Sanderson should have been
aware of his causes of action. Accordingly, Sanderson has not
raised a nonfrivolous issue for appeal regarding the district
court’s determination that his suit was barred by the statute of
limitations because it was filed over four years later. See
Anderson v. Cocheu, 176 S.W.3d 685, 689 (Tex. App. 2005). His
contention that the limitations period should be tolled or that
the defendant should be estopped from asserting limitations due
to fraudulent concealment is frivolous. See Armstrong v.
American Home Shield Corp., 333 F.3d 566, 570 (5th Cir. 2003);
Cass v. Stephens, 156 S.W.3d 38, 63 (Tex. App. 2004).
Accordingly, we uphold the district court’s certification
that the appeal presents no nonfrivolous issues. Sanderson’s
motion for leave to proceed IFP on appeal is denied, and his
appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202
n.24.
The district court’s dismissal of Sanderson’s complaint as
frivolous and this dismissal both count as strikes under 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996). Sanderson is warned that if he accumulates a
third strike, he may not proceed IFP in any civil action or
appeal filed while he is incarcerated or detained in any facility
No. 04-11334
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unless he is under imminent danger of serious physical injury.
See 28 U.S.C. § 1915(g).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.