Robert Lee v. Gaye Karriker

Filing 920100624

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Case: 09-40968 Document: 00511153281 Page: 1 Date Filed: 06/24/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-40968 Summary Calendar June 24, 2010 Lyle W. Cayce Clerk ROBERT JAMES LEE, Plaintiff ­ Appellant v. GAYE KARRIKER, Defendant ­ Appellee Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:08-CV-328 Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* Robert James Lee, Texas prisoner #1094546, appeals the dismissal of his 42 U.S.C. § 1983 complaint as untimely filed and frivolous, and for failure to state a claim upon which relief may be granted.1 Lee seeks the removal of a 2003 notation in his prison records indicating that he once took part in an escape plot. He says the entry of the notation--a "security precaution 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 1 * See 28 U.S.C. § 1915A(b)(1). Case: 09-40968 Document: 00511153281 Page: 2 No. 09-40968 Date Filed: 06/24/2010 designator"--violates his constitutional rights because he was not afforded a disciplinary hearing. By his own admission, Lee first learned of the existence of the escape notation in his record at a classification hearing on August 14, 2003. It was on this date, then, that he became aware of the facts that might ultimately support a claim.2 Yet Lee filed this federal complaint on June 14, 2008, well after the two-year statute of limitations had run.3 He puts forth no legitimate reason to excuse this tardiness so we find his lawsuit time-barred.4 And at any rate, Lee's alleged injuries do not implicate the deprivation of a constitutional right.5 We AFFIRM the district court's dismissal of Lee's § 1983 action. That said, Lee is entitled to a partial refund of the fee incurred in filing this lawsuit in the district court: according to our math, he overpaid. We VACATE the district court's judgment denying a refund, and DIRECT that court's clerk to refund any overpayment. See Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001); see also Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994). See Stanley v. Foster, 464 F.3d 565, 568 (5th Cir. 2006) (applying Texas law's two-year statute of limitations to a Texas prisoner's § 1983 suit). See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990) (plaintiff must exercise due diligence to qualify for equitable tolling); Rogers v. Ardella Veigel Inter Vivos Trust No. 2, 162 S.W.3d 281, 290 (Tex. App.--Amarillo 2005, pet. denied) (continuing tort only exists when wrongful conduct is repeated over a period of time); Booker v. Real Homes, Inc., 103 S.W.3d 487, 493 (Tex. App.--San Antonio 2003, pet. denied) (no fraudulent concealment when defendant did not have actual knowledge of the wrong) (emphasis added). See Sandin v. Conner, 515 U.S. 472, 483­84 (1995); Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000); Madison v. Parker, 104 F.3d 765, 767­68 (5th Cir. 1997). 5 4 3 2 2

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