Richard Lawler v. Ms Department of Corrections, Et

448 F. App'x 450

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 1, 2011
• Docket: 10-60975
• Status: Unpublished

Opinion

PER CURIAM: *

Richard Donald Lawler, Mississippi prisoner # 54271, proceeding pro se in this 42 U.S.C. § 1988 action, challenges its dismissal for untimeliness. (Two other defendants, the Mississippi Department of Corrections and Christopher Epps, were dismissed in district court pursuant to Lawler’s voluntary motion for dismissal. He has not challenged that dismissal, but they filed briefs here in the abundance of caution.) Such a dismissal is reviewed de novo. E.g., Sanders-Burns v. City of Plano, 594 F.3d 366, 372 (5th Cir.2010).

Lawler contends this action is not untimely because it should be considered filed in October 2006, when he filed a complaint concerning the same acts. The October 2006 complaint, which was dismissed without prejudice, “has no legal effect” and is not a factor in the timeliness equation. Dawson Farms, LLC v. Farm Serv. Agency, 504 F.3d 592, 601 (5th Cir.2007).

Congress has not provided a limitations period for § 1983 actions. Therefore, in those actions, federal courts are to borrow the general personal-injury limitations period of the forum state. E.g., Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007). In Mississippi, the general personal-injury statute of limitations is three years. See Walker v. Epps, 550 F.3d 407, 415 (5th Cir.2008).

The action at hand was filed more than three years after Lawler’s claim accrued, and he has not shown he is entitled to equitable tolling or any other tolling provision. See Peavey Elec. Corp. v. Baan U.S.A., Inc., 10 So.3d 945, 953-54 (Miss.Ct.App.2009).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.