Anthony Roberson v. Ronald Earle, et al

Filing 511108156

Case: 09-50764

Document: 00511108156

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 . 09-50764 S u m m a r y Calendar May 12, 2010 Lyle W. Cayce Clerk

A N T H O N Y W ROBERSON, P l a in t i f f - A p p e l l a n t v. R O N A L D D EARLE; BUDDY MEYER; MARGO FRAISER; STAN HIBBS; S T A N L E Y L KNEE; ROBERT TRAVIS, D e fe n d a n ts -A p p e lle e s

A p p e a ls from the United States District Court fo r the Western District of Texas U S D C No. 1:09-CV-21

B e fo r e WIENER, DeMOSS, and SOUTHWICK, Circuit Judges. PER CURIAM:* A n t h o n y W. Roberson, Texas prisoner # 838289, appeals the district c o u r t 's dismissal of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C. § 1915(e). He argues that the district court erred in concluding that his

c o m p la in t was not timely filed. We review for an abuse of discretion. See S ta n le y v. Foster, 464 F.3d 565, 568 (5th Cir. 2006).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Document: 00511108156 Page: 2 No. 09-50764

Date Filed: 05/12/2010

T h e statute of limitations applicable in the instant case is borrowed from th a t applicable to Texas personal injury claims, which is two years. Id. Any r e le v a n t tolling provisions of Texas law also are applicable. Jackson v. Johnson, 9 5 0 F.2d 263, 265 (5th Cir. 1992). However, "the accrual date of a § 1983 cause o f action is a question of federal law that is not resolved by reference to state la w ." Wallace v. Kato, 549 U.S. 384, 388 (2007). Under federal law, a claim g e n e r a lly accrues "the moment the plaintiff becomes aware that he has suffered a n injury or has sufficient information to know that he has been injured" and t h a t there is a connection between his injury and the defendant's actions. P io tr o w s k i v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001) (internal q u o ta tio n marks and citation omitted). Roberson's assertion that his cause of action did not accrue until the D e c e m b e r 2008 dismissal of his "remaining" robbery cause is without factual s u p p o r t . Roberson's own pleadings indicate that in January 2005, he became a w a r e that he "had better do something" because the defendants had determined t o deny him the property. Roberson's claim thus accrued, at the latest, at that tim e . See Piotrowski, 237 F.3d at 576. A s s u m in g , arguendo, that the continuing tort doctrine is available in the in s t a n t factual and procedural scenario, we reject Roberson's argument that the d e f e n d a n t s ' actions constituted a continuing tort. The seizure of his property w a s a single act and its continued retention was merely an "ill effect" of the o r ig in a l act. Roberson's reliance on the doctrine of fraudulent concealment fails b e c a u s e even accepting Roberson's assertion that the defendants have conspired t o conceal his ownership rights to the property, they did not conceal the fact of th e ir deprivation of the property. Roberson's argument that dismissal of his complaint under § 1915 was e r r o r because he paid a partial filing fee is without merit. Similarly, his

a r g u m e n t that application of the Prison Litigation Reform Act (PLRA) was in a p p r o p r ia t e is without merit because § 1915(e)(2)(B)(i) "requires dismissal of 2

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f r iv o lo u s IFP actions even if they are brought by non-prisoner plaintiffs." We a ls o note that following the enactment of § 1915(e), a dismissal as frivolous in a n IFP proceeding should be deemed a dismissal with prejudice unless the d is tr ic t court specifies that the dismissal is without prejudice. Marts v. Hines, 1 1 7 F.3d 1504, 1506 (5th Cir. 1997) (en banc). Accordingly, the dismissal of R o b e r s o n 's complaint with prejudice under § 1915(e) was not an abuse of d is c r e t io n . A F F IR M E D .

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