Jacobs v. Hayes ( 1999 )

No. 98-41200
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41200
Conference Calendar
DWAYNE S. JACOBS,
Plaintiff-Appellant,
versus
GERALD HAYES, Individually and in
His Official Capacity as a Doctor,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:98-CV-1798
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June 17, 1999
Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Dwayne S. Jacobs, a Texas prisoner (# 569680), appeals from
the dismissal of his pro se civil rights action as frivolous
under 28 U.S.C. § 1915(e)(2)(B). The district court sua sponte
dismissed the complaint because it was barred by the applicable
two-year Texas statute of limitations. A district court may
sua sponte dismiss a complaint as frivolous on statute-of-limitations grounds where “it is clear
from the face of a complaint that the claims asserted are barred by the applicable
statute of limitations.” Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). For § 1983
*
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that this opinion should not be published and is not precedent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. 98-41200
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claims, federal courts apply the general personal injury statute
of limitations of the forum state, Owens v. Okure, 488 U.S. 235,
249-50 (1989), which is two years in Texas. Cooper v.
Brookshire, 70 F.3d 377, 380 n.20 (5th Cir. 1995); see TEX. CIV.
PRAC. & REM. CODE ANN. § 16.003(a) (West).
Jacobs is complaining about surgery performed on his leg in
1987. He contends that the injury was not discovered until 1991
and that the district court dismissed a previous complaint on
this matter in 1993. Jacobs has not made sufficient allegations
to warrant approximately a decade of tolling of the applicable
limitations period. The district court did not abuse its
discretion in applying the limitations provision.
AFFIRMED.