Gleason v. Pattison

Fifth Circuit

Gleason v. Pattison

323 F. App'x 363

CourtCourt of Appeals for the Fifth Circuit

DecidedMay 1, 2009

Docket08-30632

StatusUnpublished

This text of 323 F. App'x 363 (Gleason v. Pattison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gleason v. Pattison, 323 F. App'x 363 (5th Cir. 2009).

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Opinion

PER CURIAM: *

James W. Gleason, Louisiana prisoner #452467, appeals the dismissal as frivo *364 lous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)® and 1915A(b)(l) of his time-barred 42 U.S.C. § 1983 complaint. We review the district court’s dismissal for abuse of discretion. See Gonzales v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir.1998).

No specified federal statute of limitations exists for § 1983 actions; therefore, federal courts borrow the forum state’s' personal injury limitations period. Rodriguez v. Holmes, 963 F.2d 799, 803 (5th Cir.1992). Louisiana Civil Code article 3492’s one-year prescriptive period applies to § 1983 actions. Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir.1989). Gleason argues pursuant to Hardin v. Straub, 490 U.S. 536, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989), that the one-year statute of limitations should be tolled until he is released from custody.

Hardin held that a federal court applying a state statute of limitations to an inmate’s federal civil rights action should give effect to the state’s statutory provision tolling the limitations period for prisoners. 490 U.S. at 542-44, 109 S.Ct. 1998. Louisiana, however, does not have a statute to that effect. Lambert v. Toups, 745 So.2d 730, 733 (La.Ct.App.1999); Hampton v. Kroger, Co., 658 So.2d 209, 211 (La.Ct.App.1995). Gleason has therefore not shown the district court’s time-bar determination to have been an abuse of discretion.

Gleason’s appeal is without arguable merit and is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). It is therefore dismissed. See 5th Cir. R. 42.2. The district court’s dismissal and the dismissal of his appeal count as two strikes for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996). Gleason is cautioned that if he accumulates three strikes, he will no longer 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 in imminent danger of serious physical injury.” § 1915(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under *364 the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

James W. Gleason, Louisiana prisoner #452467, appeals the dismissal as frivo *364 lous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)® and 1915A(b)(l) of his time-barred 42 U.S.C. § 1983 complaint. We review the district court’s dismissal for abuse of discretion. See Gonzales v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir.1998).

No specified federal statute of limitations exists for § 1983 actions; therefore, federal courts borrow the forum state’s' personal injury limitations period. Rodriguez v. Holmes, 963 F.2d 799, 803 (5th Cir.1992). Louisiana Civil Code article 3492’s one-year prescriptive period applies to § 1983 actions. Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir.1989). Gleason argues pursuant to Hardin v. Straub, 490 U.S. 536, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989), that the one-year statute of limitations should be tolled until he is released from custody.

Hardin held that a federal court applying a state statute of limitations to an inmate’s federal civil rights action should give effect to the state’s statutory provision tolling the limitations period for prisoners. 490 U.S. at 542-44, 109 S.Ct. 1998. Louisiana, however, does not have a statute to that effect. Lambert v. Toups, 745 So.2d 730, 733 (La.Ct.App.1999); Hampton v. Kroger, Co., 658 So.2d 209, 211 (La.Ct.App.1995). Gleason has therefore not shown the district court’s time-bar determination to have been an abuse of discretion.

Gleason’s appeal is without arguable merit and is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). It is therefore dismissed. See 5th Cir. R. 42.2. The district court’s dismissal and the dismissal of his appeal count as two strikes for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996). Gleason is cautioned that if he accumulates three strikes, he will no longer 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 in imminent danger of serious physical injury.” § 1915(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under *364 the limited circumstances set forth in 5th Cir. R. 47.5.4.

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323 F. App'x 363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gleason-v-pattison-ca5-2009.

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