Little v. Rowe

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 12, 2000
• Docket: 99-30644
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30644 Summary Calendar

LAWRENCE OZEL LITTLE,

Plaintiff-Appellant,

versus

CHARLES R. ROWE; JERRY A. WHITTINGTON; RUTH COX; VICTOR SIZEMORE,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Louisiana USDC No. 99-CV-238

May 11, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Lawrence Ozel Little, federal prisoner # 53017-0800, argues

that the district court abused its discretion in dismissing his

complaint as frivolous based on its being prescribed under Louisiana law.

Little’s complaint did not raise a federal question and,

thus, the district court’s jurisdiction was based on diversity

because the parties are domiciled in different states and the

amount in controversy exceeds $75,000. See 28 U.S.C.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. § 1332(a)(1). Therefore, the Louisiana law of prescription was

properly applied in the case.

Under Louisiana law, Little was required to file an action

for legal malpractice or fraud within one year of the alleged act

of malpractice or within one year of the date that the alleged

act of malpractice or fraud is discovered or should have been

discovered. La. Rev. Stat. Ann. 9:5605 (West 1999); Broussard v.

Toce, 746 So. 2d 659, 662 (La. Ct. App. 1999).

Little was in possession of facts more than one year prior

to the date that he filed his complaint which made him aware or

should have made him aware of the fact that the defendants had

engaged in legal malpractice and/or fraud. The district court

did not abuse its discretion in dismissing the complaint as

frivolous based on the time-bar. 28 U.S.C. § 1915(e)(2)(B)(i);

See Gonzales v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998).

Little has not argued on appeal that the district court

erred in denying his motion to amend his complaint to raise

constitutional claims. Therefore, this claim is deemed

abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner,

813 F.2d 744, 748 (5th Cir. 1987).

Little has failed to raise a nonfrivolous issue on appeal.

Because the appeal is frivolous, it is DISMISSED. See 5th Cir.

R. 42.2.

APPEAL DISMISSED.