Pedder v. Marquez

Case: 21-20305 Document: 00516339840 Page: 1 Date Filed: 06/01/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
No. 21-20305 Fifth Circuit
Summary Calendar FILED
June 1, 2022
Lyle W. Cayce
David Clifford Pedder, Jr., Clerk
Plaintiff—Appellant,
versus
Marlen Marquez; Rachel A. Whitney; C. S. Deigle,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-494
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
David Clifford Pedder, Jr., Texas prisoner # 01787993, appeals the
dismissal of his pro se 42 U.S.C. § 1983 complaint as frivolous under 28
U.S.C. § 1915(e)(2)(B) and the denial of his motion for reconsideration. On
appeal, Pedder argues as follows: the district court abused its discretion and
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-20305 Document: 00516339840 Page: 2 Date Filed: 06/01/2022
No. 21-20305
violated his due process rights by sua sponte dismissing his § 1983 complaint
as untimely and thus frivolous without providing him with notice and an
opportunity to respond; his claims for injunctive and declaratory relief were
not time barred; his claim under the Prison Rape Elimination Act (PREA)
was not time barred; and the district court abused its discretion in denying
his motion for reconsideration.
We review for abuse of discretion the dismissal of a complaint under
§ 1915(e)(2)(B)(i) as frivolous and the denial of a Federal Rule of Civil
Procedure 59(e) motion for reconsideration. See Gonzales v. Wyatt, 157 F.3d
1016, 1019-20 (5th Cir. 1998); see also Midland West Corp. v. FDIC, 911 F.2d
1141, 1145 (5th Cir. 1990). After considering Pedder’s arguments, we affirm.
Pedder had two years to file his § 1983 complaint. See Piotrowski v.
City of Houston, 237 F.3d 567, 576 (5th Cir. 2001). Insofar as Pedder sought
to raise a stand-alone claim under the PREA, he cites no case in support of
his position that the PREA established a private action for such a claim.
Neither the record nor Pedder’s arguments show that he actively
pursued his judicial remedies or otherwise acted diligently. See Wallace v.
Kato, 549 U.S. 384, 394-95 (2007); Hand v. Stevens Transp., Inc. Emp. Benefit
Plan, 83 S.W.3d 286, 293 (Tex. App. 2002); see also Smith v. J-Hite, Inc., 127
S.W.3d 837, 843 (Tex. App. 2003). Although the district court did not
provide notice and an opportunity for Pedder to present his position before
dismissing the § 1983 complaint as time barred, Pedder challenged the
district court’s ruling in his Rule 59(e) motion and addressed his position on
the limitations issue. See Day v. McDonough, 547 U.S. 198, 210 (2006). In
light of the foregoing, the district court did not abuse its discretion in
dismissing Pedder’s complaint as frivolous and in denying his Rule 59(e)
motion. See, e.g., Simmons v. Reliance Standard Life Ins. Co., 310 F.3d 865,
869 n.4 (5th Cir. 2002).
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No. 21-20305
The district court’s dismissal of Pedder’s complaint as frivolous
under § 1915(e)(2)(B) counts as a strike under § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996), abrogated in part on other grounds
by Coleman v. Tollefson, 575 U.S. 532, 534-41 (2015). Pedder is cautioned that
if he accumulates three strikes, he will not be allowed to proceed in forma
pauperis in any civil action or appeal filed while he is incarcerated or detained
in any facility unless he is under imminent danger of serious physical injury.
See § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.
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