Starks v. Hollier

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 7, 2008
No. 07-41085
Summary Calendar Charles R. Fulbruge III
Clerk
MELVIN STARKS
Plaintiff-Appellant
v.
Unidentified HOLLIER, Nurse; Unidentified HASHOP, Nurse Practitioner;
EARNEST CHANDLER, Warden
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:06-CV-247
Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Melvin Starks, federal prisoner # 09691-002, appeals the dismissal of his
suit filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971) wherein he claimed damages for his alleged
exposure to tuberculosis due to the defendants’ failure to follow Bureau of
Prisons policies. This court reviews the district court’s dismissal of Starks’s suit
*
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should not be published and is not precedent except under the limited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. 07-41085
as time barred de novo. See Price v. City of San Antonio, Tex., 431 F.3d 890, 892
(5th Cir. 2005).
A Bivens action is analogous to an action under 42 U.S.C. § 1983 except
that § 1983 applies to constitutional violations by state, rather than federal,
actors; this court does not distinguish between Bivens and § 1983 claims. Izen
v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005). Analysis of a Bivens claim
therefore “parallel[s] the analysis used to evaluate state prisoner’s § 1983
claims.” See Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994) (citation
omitted).
Because there is no federal statute of limitations for § 1983 and Bivens
claims, federal courts apply the general personal injury limitations period and
tolling provisions of the forum state. Brown v. Nationsbank Corp., 188 F.3d 579,
590 (5th Cir. 1999); Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993) (holding
that federal court should also give effect to any applicable tolling provisions
when applying forum state’s statute of limitations). In Texas, the appropriate
statute of limitations is two years. See Cooper v. Brookshire, 70 F.3d 377, 380
n.20 (5th Cir. 1995); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West 2005).
The statute of limitations is tolled while a prisoner fulfills 42 U.S.C. § 1997e’s
administrative exhaustion requirement. See Wright v. Hollingsworth, 260 F.3d
357, 359 (5th Cir. 2001).
Although the Texas limitations period applies, federal law governs when
Starks’s claim accrued. See Harris v. Hegmann, 198 F.3d 153, 157 (5th Cir.
1999). Under federal law, a claim generally accrues “the moment the plaintiff
becomes aware that he has suffered an injury or has sufficient information to
know that he has been injured” and that there is a connection between his injury
and the defendant’s actions. Piotrowski v. City of Houston, 237 F.3d 567, 576
(5th Cir. 2001) (internal quotation marks and citation omitted). A plaintiff need
not know that he has a legal cause of action; he need know only the facts that
would ultimately support a claim. Id.2
No. 07-41085
The district court held that Starks’s claims accrued no later than
September 23, 2002, the date when he was first informed that he had tested
positive for tuberculosis. Starks filed his first Bivens complaint, which preceded
the instant suit, on September 9, 2004. At that point only 14 days remained in
the two-year limitations period. See Cooper, 70 F.3d at 380 n.20. That
complaint was dismissed without prejudice pursuant to § 1997e for failure to
exhaust administrative remedies on November 1, 2004. The district court held
that the applicable statute of limitations was tolled while Starks sought
administrative relief from November 1, 2004, until his final administrative
appeal was rejected on October 28, 2005. The district court concluded that,
following applicable tolling allowances, Starks’s deadline to file a complaint was
November 11, 2005. Starks did not file the instant complaint until April 2006.
Starks contends that the district court erred in two respects. First, he
argues that the district court should have tolled the filing deadline in light of a
time extension made by the Administrative Remedy Coordinator of the Central
Office (Coordinator) during the pendency of Starks’s final administrative appeal.
As evidence of the extension, Starks attaches correspondence from the
Coordinator. This correspondence was not submitted to the district court and
therefore should not be considered by this court. See Theriot v. Parish of
Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). Moreover, the correspondence
indicates only that the Coordinator extended the date for responding to Starks’s
August 14, 2005, administrative appeal until November 19, 2005. However, as
the district court found, and as Starks himself concedes, the Coordinator
actually issued a response to Starks’s appeal on October 28, 2005. That the
Coordinator could have taken longer to issue the response has no relevant
bearing upon the district court’s time bar analysis.
Second, Starks contends that the district court erred in holding that the
tolling period attributable to the administrative review process ended on October
28, 2005, because Starks did not receive the Coordinator’s response until a later
3
No. 07-41085
date. The record reflects, however, that Starks was aware no later than
November 14, 2005 of the final exhaustion of his administrative remedies. Even
assuming the limitations period applicable to Starks’s claims was tolled until
that date, his complaint filed in April 2006 was untimely.”
AFFIRMED.
4