IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-50779 Summary Calendar _____________________
MICHAEL W KOCH,
Plaintiff-Appellant,
v.
JOHN C SPARKS, Dr; BEXAR COUNTY ADULT DETENTION CENTER; RALPH LOPEZ, Sheriff; BEXAR COUNTY COUNTY COMMISSIONERS COURT
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas SA-95-CA-674 _________________________________________________________________ June 18, 1996 Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Michael W. Koch appeals an order of the district court
dismissing his claim under 42 U.S.C. § 1983 as frivolous under 28
U.S.C. § 1915(d). For the reasons assigned, we vacate and
remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. On August 4, 1995, Michael W. Koch, proceeding pro se and in
forma pauperis, filed this civil rights suit against Dr. John C.
Sparks, a physician at the Bexar County Jail; Sheriff Ralph
Lopez; and the Bexar County Commissioners Court,1 alleging
improper denial of medical care while housed as a prisoner at the
Bexar County Jail.
In his complaint, Koch alleged that in March of 1993, he
began experiencing severe pain in his legs, and submitted "sick
call slips" requesting medical attention at a rate of three per
day for a period of two weeks. Koch alleged that, only after a
call to the jail by his wife, he received a cursory examination
by a physician's assistant. Koch alleged that he told the
physician's assistant that he had a history of bone marrow
infection and that the physician's assistant disregarded Koch's
requests that he review Koch's medical record, which would have
verified this history. The physician's assistant allegedly
diagnosed Koch's condition as a case of athlete's foot, and sent
him back to his cell with ointment for the treatment of foot
fungus.
Koch was eventually examined by Dr. Sparks, who allegedly
dismissed Koch's complaints as the product of a "mental problem"
and sent Koch back to his cell with no treatment. Koch alleged
1 The Bexar County Adult Detention Center is listed as a defendant on the district court's docket sheet. However, Koch did not name the detention center in his original complaint.
2 that, approximately fifteen minutes later, he was rushed back to
the infirmary with a fever of 107.5 degrees and on the verge of
lapsing into a coma. While at the hospital, Koch was allegedly
treated for bone marrow infection and pneumonia. Koch finally
alleged that, at some point during his hospital stay, he suffered
from a stroke that paralyzed the left side of his body.
The magistrate judge to whom Koch's claim was assigned
recommended that the claim be dismissed as frivolous on the
ground that the statute of limitations applicable to the action
had lapsed prior to Koch's institution of the suit. Koch filed
objections to the magistrate's report, alleging that the stroke
which he suffered in the hospital left him with no memory of the
events giving rise to his suit for a period of five months. Koch
contended that his lack of memory prevented his cause of action
from accruing until September of 1993, and thus that his claim
was not barred by the statute of limitations.
The district court overruled Koch's objection and adopted
the magistrate judge's recommendation to dismiss Koch's claim as
frivolous pursuant to 28 U.S.C. § 1915(d) (1994).2
II. ANALYSIS
We review the district court's order dismissing Koch's claim
for an abuse of discretion. Booker v. Koonce, 2 F.3d 114, 115
(5th Cir. 1993). Dismissal of an in forma pauperis complaint as
2 The court erroneously stated in its order that it dismissed the claim pursuant to 42 U.S.C. § 1915(d).
3 frivolous under § 1915(d) is proper only if the claims in the
complaint have no arguable basis in law or fact. See Id. at 115-
16.
Because no federal statute of limitations exists for actions
under § 1983, federal courts apply the forum state's general
personal injury limitations period. Owens v. Okure, 488 U.S.
235, 249-50 (1989); Ali v. Higgs, 892 F.2d 438, 439 (5th Cir.
1990). In Texas, the applicable limitations period is two years.
TEX. CIV. PRAC. & REM. CODE § 16.003(a) (Vernon Supp. 1996); Burrell
v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989).
While Texas law determines the applicable limitations period
and tolling exceptions, federal law determines when a cause of
action accrues, and thus when the statute of limitations begins
to run. Id. "A state statute of limitations imposed in a § 1983
action does not run until the plaintiff is in possession of the
'critical facts' that he has been hurt and the defendant is
involved." Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir.
1988).
In determining whether the district court abused its
discretion in finding that no arguable basis in law or fact
existed to support the conclusion that Koch's claim was timely
filed, we construe the allegations contained in Koch's pleadings
liberally. Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d
94, 96 (5th Cir. 1994), cert. denied, 115 S. Ct. 220 (1994).
Under such a construction, Koch's allegations that he was rushed
4 to the hospital nearly comatose and that he subsequently suffered
a stroke that impaired his memory for five months at least create
an arguable basis for concluding that he lacked knowledge of the
"critical facts" of his claim until September of 1993.
Accordingly, an arguable basis in law exists that his cause of
action did not accrue until September of 1993, and thus that his
claim was timely filed.
In overruling Koch's objections to the magistrate judge's
recommendation of dismissal under § 1915(d), the district court
reasoned that Koch's pleadings provided "no indication . . . that
[his] lack of awareness continued unabated for the ensuing two
years." This analysis misconstrues the operation of the statute
of limitations. Koch's alleged lack of awareness creates an
arguable basis in law and fact that his cause of action did not
accrue until September of 1993. Koch would have a full two
years--rather than the nineteen months suggested by the district
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-50779 Summary Calendar _____________________
MICHAEL W KOCH,
Plaintiff-Appellant,
v.
JOHN C SPARKS, Dr; BEXAR COUNTY ADULT DETENTION CENTER; RALPH LOPEZ, Sheriff; BEXAR COUNTY COUNTY COMMISSIONERS COURT
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas SA-95-CA-674 _________________________________________________________________ June 18, 1996 Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Michael W. Koch appeals an order of the district court
dismissing his claim under 42 U.S.C. § 1983 as frivolous under 28
U.S.C. § 1915(d). For the reasons assigned, we vacate and
remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
* Pursuant to Local 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 Local Rule 47.5.4. On August 4, 1995, Michael W. Koch, proceeding pro se and in
forma pauperis, filed this civil rights suit against Dr. John C.
Sparks, a physician at the Bexar County Jail; Sheriff Ralph
Lopez; and the Bexar County Commissioners Court,1 alleging
improper denial of medical care while housed as a prisoner at the
Bexar County Jail.
In his complaint, Koch alleged that in March of 1993, he
began experiencing severe pain in his legs, and submitted "sick
call slips" requesting medical attention at a rate of three per
day for a period of two weeks. Koch alleged that, only after a
call to the jail by his wife, he received a cursory examination
by a physician's assistant. Koch alleged that he told the
physician's assistant that he had a history of bone marrow
infection and that the physician's assistant disregarded Koch's
requests that he review Koch's medical record, which would have
verified this history. The physician's assistant allegedly
diagnosed Koch's condition as a case of athlete's foot, and sent
him back to his cell with ointment for the treatment of foot
fungus.
Koch was eventually examined by Dr. Sparks, who allegedly
dismissed Koch's complaints as the product of a "mental problem"
and sent Koch back to his cell with no treatment. Koch alleged
1 The Bexar County Adult Detention Center is listed as a defendant on the district court's docket sheet. However, Koch did not name the detention center in his original complaint.
2 that, approximately fifteen minutes later, he was rushed back to
the infirmary with a fever of 107.5 degrees and on the verge of
lapsing into a coma. While at the hospital, Koch was allegedly
treated for bone marrow infection and pneumonia. Koch finally
alleged that, at some point during his hospital stay, he suffered
from a stroke that paralyzed the left side of his body.
The magistrate judge to whom Koch's claim was assigned
recommended that the claim be dismissed as frivolous on the
ground that the statute of limitations applicable to the action
had lapsed prior to Koch's institution of the suit. Koch filed
objections to the magistrate's report, alleging that the stroke
which he suffered in the hospital left him with no memory of the
events giving rise to his suit for a period of five months. Koch
contended that his lack of memory prevented his cause of action
from accruing until September of 1993, and thus that his claim
was not barred by the statute of limitations.
The district court overruled Koch's objection and adopted
the magistrate judge's recommendation to dismiss Koch's claim as
frivolous pursuant to 28 U.S.C. § 1915(d) (1994).2
II. ANALYSIS
We review the district court's order dismissing Koch's claim
for an abuse of discretion. Booker v. Koonce, 2 F.3d 114, 115
(5th Cir. 1993). Dismissal of an in forma pauperis complaint as
2 The court erroneously stated in its order that it dismissed the claim pursuant to 42 U.S.C. § 1915(d).
3 frivolous under § 1915(d) is proper only if the claims in the
complaint have no arguable basis in law or fact. See Id. at 115-
16.
Because no federal statute of limitations exists for actions
under § 1983, federal courts apply the forum state's general
personal injury limitations period. Owens v. Okure, 488 U.S.
235, 249-50 (1989); Ali v. Higgs, 892 F.2d 438, 439 (5th Cir.
1990). In Texas, the applicable limitations period is two years.
TEX. CIV. PRAC. & REM. CODE § 16.003(a) (Vernon Supp. 1996); Burrell
v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989).
While Texas law determines the applicable limitations period
and tolling exceptions, federal law determines when a cause of
action accrues, and thus when the statute of limitations begins
to run. Id. "A state statute of limitations imposed in a § 1983
action does not run until the plaintiff is in possession of the
'critical facts' that he has been hurt and the defendant is
involved." Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir.
1988).
In determining whether the district court abused its
discretion in finding that no arguable basis in law or fact
existed to support the conclusion that Koch's claim was timely
filed, we construe the allegations contained in Koch's pleadings
liberally. Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d
94, 96 (5th Cir. 1994), cert. denied, 115 S. Ct. 220 (1994).
Under such a construction, Koch's allegations that he was rushed
4 to the hospital nearly comatose and that he subsequently suffered
a stroke that impaired his memory for five months at least create
an arguable basis for concluding that he lacked knowledge of the
"critical facts" of his claim until September of 1993.
Accordingly, an arguable basis in law exists that his cause of
action did not accrue until September of 1993, and thus that his
claim was timely filed.
In overruling Koch's objections to the magistrate judge's
recommendation of dismissal under § 1915(d), the district court
reasoned that Koch's pleadings provided "no indication . . . that
[his] lack of awareness continued unabated for the ensuing two
years." This analysis misconstrues the operation of the statute
of limitations. Koch's alleged lack of awareness creates an
arguable basis in law and fact that his cause of action did not
accrue until September of 1993. Koch would have a full two
years--rather than the nineteen months suggested by the district
court--from the time that he gained awareness of the critical
facts supporting his claim in which to file suit. An arguable
basis thus exists for the conclusion that Koch's claim, filed on
August 4, 1995, is not time barred.
III. CONCLUSION
Because an arguable basis in law and fact exists to support
the conclusion that Koch filed his claim within the relevant
limitations period, the district court abused its discretion in
5 ordering dismissal under § 1915(d). Accordingly, we VACATE the
district court's order and REMAND this cause for further
proceedings consistent with this opinion.