Johnny Edwards v. Elizabeth Miller, et al

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Johnny Edwards v. Elizabeth Miller, et al

Doc. 0

Case: 09-40998

Document: 00511172376

Page: 1

Date Filed: 07/14/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40998 S u m m a r y Calendar July 14, 2010 Lyle W. Cayce Clerk

J O H N N Y LYNN EDWARDS, P la in t if f -A p p e lla n t , versu s E L I Z A B E T H MILLER; ANGIE CARGILLE; WESLEY PRATT, D e fe n d a n t s -A p p e lle e s .

A p p e a l from the United States District Court fo r the Eastern District of Texas N o . 6:09-CV-234

B e fo r e DAVIS, SMITH, and DENNIS, Circuit Judges. P E R CURIAM:*

J o h n n y Edwards, Texas prisoner # 566917, appeals the dismissal of his 42 U .S .C . § 1983 complaint as frivolous and for failure to state a claim on which rePursuant 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Dockets.Justia.com

Case: 09-40998

Document: 00511172376 Page: 2 No. 09-40998

Date Filed: 07/14/2010

lie f may be granted because the claim was barred by the statute of limitations. Edwards alleged that prison officials acted improperly in confiscating two items o f mail on February 9, 2007. That is this date on which he became aware of the fa c t s that would give rise to the complaint. See Piotrowski v. City of Houston, 2 3 7 F.3d 567, 576 (5th Cir. 2001); see also Moore v. McDonald, 30 F.3d 616, 621 (5 t h Cir. 1994). As was found by the district court, Edwards is entitled to 87 days of tolling fr o m February 25, 2007, to May 23, 2007, during which his grievance proceedin g s were pending. See Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir. 1992); H o lm e s v. Texas A&M Univ., 145 F.3d 681, 685 (5th Cir. 1998). Because he did n o t file his complaint within two-years plus the 87-day tolled period of Februa r y 9, 2007, the complaint was untimely filed. See Stanley v. Foster, 464 F.3d 5 6 5 , 568 (5th Cir. 2006). The district court did not abuse its discretion in conc lu d in g that the complaint was time-barred. See Moore, 30 F.3d at 621. T h e judgment is AFFIRMED.

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