Wilson v. Wilson

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2001
• Docket: 01-60093
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-60093 Conference Calendar

CHARLES EDWARD WILSON,

Plaintiff-Appellant,

versus

DICK WILSON; TOMMY DAUGHDRILL; KEN ESTES; NORMAN TRAVIS; H.N. JENSEN; ALONZO H. STURGEON; LEONARD ROSENTHAL,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:00-CV-881-LN -------------------- August 23, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

Charles Edward Wilson, Mississippi prisoner # 44482, appeals

the district court’s sua sponte dismissal of his 42 U.S.C. § 1983

complaint as time-barred pursuant to 28 U.S.C. § 1915(e). Wilson

argues that his complaint was timely because he did not discover

the legal basis for his cause of action until May 2000.

When applying the discovery rule under Mississippi law, the

focus is upon the time that the would-be plaintiff discovers, or

should have discovered by the exercise of reasonable diligence,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-60093 -2-

that he probably had an actionable injury, and it is not

necessary that the plaintiff becomes absolutely certain that he

has a cause of action. First Trust Nat’l Ass’n v. First Nat’l

Bank of Commerce, 220 F.3d 331, 336 (5th Cir. 2000). The

district court did not abuse its discretion in dismissing

Wilson’s 42 U.S.C. § 1983 complaint, which alleged a conspiracy

to falsely arrest him for, and accuse and convict him of rape and

kidnaping from October 1982 through March 1983, as time-barred.

See Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993).

Wilson is cautioned that the district court’s dismissal of

his complaint as frivolous counts as a “strike” under 28 U.S.C.

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th

Cir. 1996). Wilson is further cautioned that if he accumulates

three “strikes” under 28 U.S.C. § 1915(g), he will not be able to

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).

AFFIRMED. SANCTION WARNING ISSUED.