Sanderson v. American General Life & Accident Insurance

178 F. App'x 399

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 3, 2006
• Docket: 04-11334
• Status: Unpublished

Opinion

PER CURIAM: *

Alvin S. Sanderson, Texas prisoner #250283, moves for leave to proceed in forma pauperis (IFP) in this appeal from the district court’s dismissal of his complaint as time-barred. Invoking diversity jurisdiction, Sanderson sued American General Life & Accident Insurance Co. (American General) for fraud, fraudulent inducement, fraudulent concealment, fraudulent misrepresentation, and breach of contract, relating to Sanderson’s failure to receive payment of insurance proceeds from four life insurance policies for which he was named the primary beneficiary. Sanderson argues that: (1) the magistrate judge lacked authority to issue the second report and recommendation; (2) the district court erred by failing to conduct a de novo review of the record and by failing to address the objections to the magistrate judge’s second report; (3) the district court did not provide Sanderson with a sufficient opportunity to develop his fraudulent concealment claim; and (4) Sander-son’s motion to alter the judgment was timely filed.

Even if we consider, arguendo, Sanderson’s objections to the second report and his motion to alter the judgment, he has not raised a nonfrivolous issue for appeal. The magistrate judge had the authority to issue the second report and recommendation. See 28 U.S.C. § 636(b). The adoption of this report prior to Sanderson’s filing his objections to the report did not prejudice Sanderson because his objections did not raise any nonfrivolous issues. See McGill v. Goff, 17 F.3d 729, 731 (5th Cir.1994), overruled on other grounds, Kansa Reins. Corp. v. Congressional Mortgage Co., 20 F.3d 1362, 1373-74 (5th Cir.1994). Sanderson admittedly was aware that he had not received payment of the life insurance proceeds in June 1999, and he suspected wrongdoing at that point, going so far as to ask American General to investigate possible criminal activity. American General stated that it had sent the insurance proceeds payable to Sanderson, to Sanderson’s then wife, Mar-got Sanderson, as Sanderson had requested. In September 1999, Sanderson re ceived purported copies of the cancelled checks showing the disbursement of the insurance proceeds. By that time, Sander-son should have been aware of his causes of action. Accordingly, Sanderson has not raised a nonfrivolous issue for appeal regarding the district court’s determination that his suit was barred by the statute of limitations because it was filed over four years later. See Anderson v. Cocheu, 176 S.W.3d 685, 689 (Tex.App.2005). His contention that the limitations period should be tolled or that the defendant should be estopped from asserting limitations due to fraudulent concealment is frivolous. See Armstrong v. American Home Shield Corp., 333 F.3d 566, 570 (5th Cir.2003); Cass v. Stephens, 156 S.W.3d 38, 63 (Tex. App.2004).

Accordingly, we uphold the district court’s certification that the appeal presents no nonfrivolous issues. Sanderson’s motion for leave to proceed IFP on appeal is denied, and his appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 n. 24.

The district court’s dismissal of Sanderson’s complaint as frivolous and this dismissal both count as strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996). Sanderson is warned that if he accumulates a third strike, he may not proceed IFP 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 28 U.S.C. § 1915(g).

MOTION DENIED; 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 tire limited circumstances set forth in 5th Cir. R. 47.5.4.