Washington v. Delta Business College , 287 F. App'x 367 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 18, 2008
No. 08-30278
Summary Calendar Charles R. Fulbruge III
Clerk
ANGELO E. WASHINGTON,
Plaintiff-Appellant,
v.
DELTA BUSINESS COLLEGE;
UNITED STATES DEPARTMENT OF EDUCATION;
DCS COLLECTIONS AGENCY,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
No. 3:07-CV-552
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Angelo Washington, pro se and in forma pauperis, sued Delta Business
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 08-30278
College (“Delta”), the U.S. Department of Education (“DOEd”), and DSI Collec-
tions Agency citing, inter alia, the Due Process Clause of the Fourteenth Amend-
ment,1 the “Sarbanes Oakley [sic] Act of 2002,” Title VI, Title VII, Title IX, the
Mandatory Victims Restitution Act of 1996, the Federal False Claims Act, and
Louisiana law (including the Louisiana Constitution). Expressly adopting the
magistrate judge’s recommendation, the district court dismissed the claims un-
der 28 U.S.C. § 1915(e) as time-barred.2
Washington asserts that he attended Delta in 1980 and 1981 with aid of
student loans secured through the DOEd but left Delta in 1982. He claims that
the DOEd continued to make payments on his behalf to Delta, which refused to
return the mistakenly-provided money. He avers that as a result, he has been
burdened for over twenty years with fraudulent collection proceedings but that
things changed in August 2006 when the defendants “finally realized they were
in error, cease [sic] the collection proceedings, added up the total amount col-
lected . . . and sent him a check for the amount of the loan money illegally col-
lected.” Because of the now-admitted error, Washington claims he wrongfully
suffered destruction of credit, garnishment of wages, and defamation of reputa-
tion.
On appeal, Washington offers a grab bag of reasons why the district court
got it wrong. He contends, for instance, that the court violated his constitutional
rights under the First, Fifth, and Fourteenth Amendments when it halted the
service of summons and that the magistrate judge erred in recommending dis-
missal without having read the exhibits or considered the arguments. Likewise,
1
In his “Motion to Enter Status Report,” Washington also alleged that his Fifth, Sixth,
and Seventh Amendment rights had been violated.
2
Title 28 U.S.C. § 1915(e)(2) provides that “the court shall dismiss the case at any time
if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.”
2
No. 08-30278
he claims that the court prematurely dismissed the case, contrary to Federal
Rule of Civil Procedure 56, and that it erred in denying the defendants their
rights, under the federal rules, to answer the complaint. He also alleges that the
court erred in terminating discovery and all other pre-trial court processes, that
it erroneously denied him default judgment, and that it wrongfully ignored the
defendants’ admission of guilt and Washington’s offer to settle or engage in alter-
native dispute resolution. He moreover claims that the court was blind to defen-
dants’ obstruction of justice, suppression of evidence, contractual violations, and
denial of due process.
What Washington does not do, however, is mentionSSmuch less addressSS
any statutes of limitations, the issue on which dismissal expressly rested.3 He
has consequently waived any challenge to the determination that his claims are
precluded.4 See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (noting
that even pro se appellants must brief arguments to avoid waiver). From this
his case crumbles, because no one has a constitutional right to sue on a time-
barred claim, and § 1915(e)(2)’s text requires a district court to “dismiss the case
at any time”SSincluding pre-discoverySSif it determines that the matter “lacks
3
The closest that Washington’s briefSSread charitablySScomes to addressing the issue
of limitations is that “[i]t was a violation of the FRAP rules to terminate this lawsuit in that
the Plaintiff has a year to file for admitted damages from the . . . past 20 years . . . . As a stu-
dent, ones [sic] contractual agreement with an institution is not complete until his or her stu-
dent loans are completely paid off and satisfied, in this case 20 years with the state and
[DOEd].” Though the argument as written explicitly refers to the Federal Rules of Civil Proce-
dure and not to any statute of limitations, it is possible that Washington inartfully refers to
the latter when he mentions the former. Even so construed, however, the argument fails. As
noted by the magistrate judge, in Louisiana the prescriptive period for a breach of contract is
ten years from when the plaintiff first “knew or should have known of the” breach. See Haw-
thorne Land Co. v. Occidental Chem. Corp., 431 F.3d 221, 228-30 (5th Cir. 2005). Washington
does not explain why Hawthorne Land does not apply.
4
The district court was within its authority to consider sua sponte whether the claim
was precluded. See Hentz v. Cabana, No. 94-60275, 1994 WL 499668, at *2 n.6 (5th Cir. Aug.
22, 1994) (unpublished) (“In an action proceeding in forma pauperis, this Court may sua sponte
consider affirmative defenses apparent from the record, such as whether or not a claim is time-
barred.”) (citing Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990)).
3
No. 08-30278
an arguable basis either in law or in fact.” See Hicks v. Garner, 69 F.3d 22, 25
(5th Cir. 1995) (internal citations and quotations omitted).
AFFIRMED.
4