Lawrence Pittman, Sr. v. Lynette Conerly, et al

Filing

UNPUBLISHED OPINION FILED. [10-30133 Affirmed ] Judge: CDK , Judge: HRD , Judge: JLD Mandate pull date is 01/13/2011 [10-30133]

Lawrence Pittman, Sr.ase: 10-30133 Document: 00511331442 C v. Lynette Conerly, et al

Page: 1 Date Filed: 12/23/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30133 S u m m a r y Calendar December 23, 2010 Lyle W. Cayce Clerk

L A W R E N C E RAY PITTMAN, SR., P la in t if f -A p p e lla n t v. L Y N E T T E CONERLY, Court Reporter; JEROME WINSBERG, Honorable, J u d g e ; SHARON HUNTER, Honorable Judge, 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 Louisiana U S D C No. 2:09-CV-7557

B e fo r e KING, DeMOSS, and DENNIS, Circuit Judges. P E R CURIAM:* L a w r e n c e Ray Pittman, Sr., Louisiana prisoner # 101703, proceeding pro s e and in forma pauperis, filed a 42 U.S.C. § 1983 complaint alleging that the d e fe n d a n t s failed to provide him a copy of the instructions that were provided t o the jury in connection with his March 21, 1989, conviction of attempted firstd e g r e e murder and armed robbery. He alleged that the reasonable doubt jury in s t r u c t io n that was given in his trial violated Cage v. Louisiana, 498 U.S. 39

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-30133 Document: 00511331442 Page: 2 Date Filed: 12/23/2010 No. 10-30133 (1 9 9 0 ), overruled on other grounds, Estelle v. McGuire, 502 U.S. 62 (1991). The d is t r ic t court dismissed Pittman's complaint pursuant to 28 U.S.C. § 1915A and 2 8 U.S.C. § 1915(e)(2)(B) after determining that his claims had prescribed and w e r e otherwise without merit. Pittman argues that the district court erred by d is m is s in g his complaint sua sponte, applying Louisiana state law to determine w h e n his cause of action accrued, failing to apply the continuing violation d o c t r in e , and dismissing his request for injunctive relief. P it t m a n 's arguments do not indicate that the district court erred when it d is m is s e d his claims. Prescribed claims are properly dismissed pursuant to § 1915 as frivolous. See Gonzales v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir. 1 9 9 8 ). This court reviews such dismissals for abuse of discretion. See Martin v . Scott, 156 F.3d 578, 580 (5th Cir. 1998); Black v. Warren, 134 F.3d 732, 734 (5 t h Cir. 1998). "Although the defense of limitations is an affirmative defense, w h ic h usually must be raised by the defendants in the district court, this court h a s held that the district court may raise the defense sua sponte in an action u n d e r 28 U.S.C. § 1915." Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). Also, the district court correctly concluded that the statute of limitations fo r a § 1983 claim is the same as the statute of limitations in a personal injury a c t io n in the state in which the claim accrues. See Wallace v. Kato, 549 U.S. 384, 3 8 7 -8 8 (2007). In Louisiana, the applicable prescriptive period is one year. LA. C IV. CODE ANN. art. 3492. Federal law dictates that the statute of limitations b e g in s to run "the moment the plaintiff becomes aware that he has suffered an in ju r y or has sufficient information to know that he has been injured." Piotrowski v. City of Hous., 237 F.3d 567, 576 (5th Cir. 2001) (internal quotation m a r k s omitted). While Pittman's allegations do not reveal the precise date that h e became aware of the state court's failure to provide copy of the reasonable d o u b t instruction, available court records indicate that prior to 2001, Pittman w a s aware of the Cage claim and he was aware that he was not provided a copy o f the jury instruction. See Pittman v. Cain, 247 F.3d 241, at *1 (5th Cir. Jan. 2

Case: 10-30133 Document: 00511331442 Page: 3 Date Filed: 12/23/2010 No. 10-30133 1 1 , 2001) (unpublished). The statute of limitations therefore began to run s o m e t im e prior to 2001. See Piotrowski, 237 F.3d at 576. Giving Pittman the b e n e fit of the date that he signed his § 1983 complaint as the filing date, P it tm a n filed his complaint in the instant proceeding on November 23, 2009, w e ll after the expiration of the applicable one-year limitation period. See art. 3 4 9 2 . The district court therefore correctly concluded that Pittman's claims had p r e s c r ib e d . P it t m a n did not raise his argument regarding the continuing violation d o c t r in e in the district court. This court will not consider an issue that a party d id not raise in the district court. Leverette v. Louisville Ladder Co., 183 F.3d 3 3 9 , 342 (5th Cir. 1999). In any event, this argument lacks merit. See McGregor v . La. State Univ. Bd. of Supervisors, 3 F.3d 850, 866 (5th Cir. 1993). Pittman's a r g u m e n t that his claim for injunctive relief should have survived the district c o u r t's dismissal also lacks merit, as statutes of limitations apply to § 1983 a c t io n s that seek injunctive relief. Walker v. Epps, 550 F.3d 407, 414 (5th Cir. 2 0 0 8 ). F in a lly , in addition to determining that Pittman's claims were prescribed, t h e district court concluded that Pittman's claims against the state court judges w e r e barred by absolute judicial immunity. Also, to the extent that Pittman was s u in g the judges in their official capacities, the district court concluded that his c la im s were barred. The district court further determined that Pittman's claims a g a in s t the court reporter failed because Pittman had suffered no harm from her fa ilu r e to transcribe the jury instructions. Pittman has failed to provide

a r g u m e n t regarding these determinations and has therefore abandoned these is s u e s . See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v . Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); FED. R. A PP. P. 28(a)(9). T h e judgment of the district court is AFFIRMED.

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