Ivan Gibson v. Houston Launch Pad, et al

Filing 511108323

Case: 09-20689

Document: 00511108323

Page: 1

Date Filed: 05/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20689 S u m m a r y Calendar May 12, 2010 Lyle W. Cayce Clerk

IV A N DARRELL GIBSON, P l a in t i f f - A p p e l l a n t v. H O U S T O N LAUNCH PAD; PRENTICE GOODS, Director; JOHN DOE, S ta ff/E m p lo y e e , D e fe n d a n ts -A p p e lle e s

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:08-CV-1377

B e fo r e JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges. P E R CURIAM:* I v a n Darrell Gibson, Texas prisoner # 500823, appeals from the dismissal o f his civil action as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(I) due to the tw o -y e a r statute of limitations applicable to 42 U.S.C. § 1983 claims brought in T ex as. In his civil action, Gibson brought claims pursuant to the Eighth

A m e n d m e n t and § 1983, the Americans with Disabilities Act (ADA), the Texas D e c e p t iv e Trade Practices Act (DTPA), Texas contract law, and Texas fraud law.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 09-20689

Document: 00511108323

Page: 2

Date Filed: 05/12/2010

No. 09-20689 G ib s o n contends in this court that the district court erred by dismissing h is claims as time barred because he was mentally incompetent due to s ch iz o p h r e n ia and manic depressive disorder and the use of psychoactive m e d i c a t io n s to treat those disorders until he was placed on the TDCJ's Allred U n it , where he received psychotherapy and a correct dosage of medication. He a lleg e s that the defendants' alleged infliction of emotional distress was one of the c a u se s of his mental incompetence. He argues that his disability delayed the c o m m e n c e m e n t of the limitations period. Gibson alleges that he emerged from h is state of mental incompetence in 2007. He alleged none of these facts in the d i s tr ic t court, however. G ib s o n also argues that his common law fraud claim was subject to Texas's f o u r - y e a r statute of limitations and that his ADA claim was subject to no statute o f limitations. On appeal, he does not mention the contract and fiduciary duty c la im s he raised in the district court. He has abandoned any argument that the d is t r ic t court erred by failing to determine whether those claims were time b a r r e d . See In re Municipal Bond Reporting Antitrust Litigation, 672 F.2d 436, 4 3 9 n.6 (5th Cir. 1982). G ib s o n 's § 1983, ADA, and DTPA claims all were subject to a two-year lim ita tio n s period. See Frame v. City of Arlington, 575 F.3d 432, 437 (5th Cir. 2 0 0 9 ) (ADA); Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (§ 1983); F ie ld te c h Avionics & Instruments, Inc. v. Component Control Com., Inc., 2 6 2 S.W. 3d 813, 830 (Tex. App. 2008) (DTPA). Gibson's otherwise vague

a lle g a tio n s suggest that he might have suffered serious mental afflictions that w e r e treated with psychoactive medications. His allegations do not, however, in d i c a t e how those conditions or medications rendered him unable to care for h im s e lf or manage his affairs such that the limitations period should have been to lle d until he regained mental competency. See TEX. CIV. PRAC. & REM.CODE 2

Case: 09-20689

Document: 00511108323

Page: 3

Date Filed: 05/12/2010

No. 09-20689 A N N. § 16.001(a)(2) and (b); Aduddle v. Body, 277 F. App'x 459, 461 (5th Cir. 2 0 0 8 ). In light of such deficiencies, Gibson's § 1983, ADA, and DTPA claims w e r e time barred, and the district court's dismissal as to those claims is affirmed o n that ground. G ib s o n contended in the district court that the defendants committed fr a u d by misrepresenting that they would keep private any information about tr e a tm e n t and his approved visitors list, then defaming him by disclosing this in f o r m a t io n to his girlfriend. He also asserted that the defendants

m is re p r e s e n t e d that the facility would be kept locked and nobody other than t h o s e on approved visitors lists would be allowed onto the grounds. I n Texas, common law fraud claims are subject to a four-year statute of lim ita tio n s . TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a)(4). The fraud claim r a is e d in Gibson's April 28, 2008, complaint was not time barred as to the events o f August 30, 2004. A district court must sua sponte dismiss a prisoner's IFP complaint if the a c t io n is malicious or frivolous, fails to state a claim, or seeks monetary relief fr o m a defendant who is immune. § 1915(e)(2)(B). A claim may be dismissed as fr iv o lo u s if it does not have an arguable basis in fact or law. Geiger v. Jowers, 4 0 4 F.3d 371, 373 (5th Cir. 2005). G ib so n 's allegations suggest that the Houston Launch Pad (HLP) staff v io la te d its own procedures and HLP's contract with the state by allowing his g ir lfr ie n d inside the facility and providing her with information. Gibson did not a lle g e that HLP knowingly and falsely informed him of its policies and p r o c e d u r e s . Nor do his allegations suggest that HLP staff intended for him to r e ly on misrepresentations about the facility's policies. He failed to make

a lle g a tio n s sufficient to give rise to a nonfrivolous common law fraud claim. See E r n s t & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W. 3d 573, 577 (Tex. 3

Case: 09-20689

Document: 00511108323

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Date Filed: 05/12/2010

No. 09-20689 2 0 0 1 ) . The district court's dismissal of the action as frivolous is affirmed as to th e common law fraud claim on that ground. See Sojourner T v. Edwards, 9 7 4 F.2d 27, 30 (5th Cir. 1992). T h e district court's dismissal of Gibson's action as frivolous counts as a s tr ik e under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5 th Cir. 1996). Gibson is warned that if he accumulates three strikes, he may n o t proceed in forma pauperis in any civil action or appeal while he is in c a r c e ra t e d or detained in any facility unless he is under imminent danger of s e r io u s physical injury. See § 1915(g). A F F I R M E D . SANCTION WARNING IMPOSED.

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