Javier Pantoja v. Fort Worth Texas Police Dept, et al

Filing

UNPUBLISHED OPINION FILED. [13-10283 Dismissed as Frivolous] Judge: JLW , Judge: PRO , Judge: CH Mandate pull date is 11/14/2013 [13-10283]

Case: 13-10283

Document: 00512418986

Page: 1

Date Filed: 10/24/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 13-10283
Summary Calendar

October 24, 2013
Lyle W. Cayce
Clerk

JAVIER ROBLES PANTOJA,
Plaintiff-Appellant
v.
FORT WORTH TEXAS POLICE DEPARTMENT; FORT WORTH TEXAS
POLICE DEPARTMENT EVIDENCE ROOM SUPERVISOR; FORT WORTH
TEXAS POLICE DEPARTMENT SHERIFF,
Defendants-Appellees

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CV-159

Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
In 2013, Plaintiff-Appellant Javier Robles Pantoja (Robles), currently
federal prisoner # 41488-080, filed a 42 U.S.C. § 1983 action asserting that the
defendants had seized personal property from him at the time of his arrest but
failed to return the items when the charges against him were dismissed in 1989.
The district court dismissed the complaint as frivolous and for failure to state a

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 13-10283

Document: 00512418986

Page: 2

Date Filed: 10/24/2013

No. 13-10283
claim, pursuant to 28 U.S.C. § 1915A(b)(1). Robles now challenges the validity
of that ruling. We review the dismissal de novo. See Bazrowx v. Scott, 136 F.3d
1053, 1054 (5th Cir. 1998).
Before this court, Robles argues that the district court erred in concluding
that his claims were barred by the applicable limitations period. He maintains
that the time should not have begun to run until 2012, when he learned that he
would not receive his property. The statute of limitations for a § 1983 claim is
the same as for a personal injury action in the applicable state. Owens v. Okure,
488 U.S. 235, 249-50 (1989). The limitations period begins to run when the
plaintiff knows, or has reason to know, of the injury or damages that form the
basis of the action. Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir.
1985). Robles has not shown that the district court erred in applying the twoyear limitations period and dismissing Robles’s complaint as frivolous or for
failure to state a claim. See id.; Bazrowx, 136 F.3d at 1054.
Robles’s appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it is
dismissed. See 5TH CIR. R. 42.2.
The dismissal of this appeal as frivolous and the district court’s dismissal
of the underlying complaint as frivolous and for failure to state a claim each
count as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996).

We caution Robles that once he

accumulates three strikes, he may not proceed in forma pauperis in any civil
action or appeal filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.

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