Pajooh v. Montgomery ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30715
Summary Calendar
MASSOOD DANESH PAJOOH,
Plaintiff-Appellant,
versus
KENNETH MONTGOMERY; JOHN BLAZE; TONY LOCK; STEVEN PLUNKETT;
P. DREXCEL; R. FIRMIN; LEONARD GRACE; TERRI POVENMIRE; RONALD G.
THOMPSON; FELIX SANCHEZ; C. GREEN; MARTHA JORDAN; SUE BEASLEY;
R. THOMPSON; JOHN DOE; UNKNOWN EMPLOYEES,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(01-CV-89)
_________________________________________________________________
December 27, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Massood Danesh Pajooh challenges the dismissal of his pro se
civil rights complaint, brought pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Federal courts look to state law to determine the applicable
prescriptive period for a Bivens claim. See, e.g., Elzy v.
Roberson, 868 F.2d 793, 794-95 (5th Cir. 1989); LA. CIV. CODE ANN.
art. 3492 (West 1994) (applicable prescriptive period in Louisiana
is one year). We conclude: Pajooh was aware of each alleged
*
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this opinion should not be published and is not precedent except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.
violation when it occurred; his claims accrued between February
and December 1999, when the alleged violations occurred; and his
claims prescribed, because his complaint was not filed until more
than a year later — in January 2001.
Pajooh’s contentions that some of his claims accrued within
the one-year prescriptive period are not persuasive. Although one
punishment did not begin until January 2000, Pajooh was aware in
December 1999 that the punishment would be imposed; therefore, any
claim accrued at that time. See Burns v. Harris County Bail Bond
Bd., 139 F.3d 513, 518-19 (5th Cir. 1998). Pajooh also asserts
that another claim did not accrue until he learned of his weight
loss in January 2000; however, his constitutional claims arise from
the alleged violations of his rights by prison officials —
violations Pajooh was aware of when they occurred. Pajooh also
argues that his complaint should be construed under a continuing
violation theory, but he has not shown that any violation occurred
within the prescriptive period as is required under that theory.
See Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102, 1103 (5th
Cir. 1990).
Pajooh maintains that the Louisiana doctrine of contra non
valentem tolls the running of the prescriptive period because
harassment and fear of retaliation effectively prevented him from
timely filing a complaint. However, Pajooh’s own complaint
suggests that these allegations are exaggerated; despite his
alleged fear of retaliation, he included with his complaint
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exhibits that show he filed internal grievances about many of the
incidents cited in that complaint.
Pajooh also requested the production of documents he asserts
were necessary to demonstrate how retaliation and harassment caused
him to delay filing his complaint. We conclude that the grant of
the protective order was neither arbitrary nor clearly
unreasonable. See Moore v. Willis Indep. Sch. Dist., 233 F.3d 871,
876 (5th Cir. 2000). A motion to dismiss was pending, and the
magistrate judge had already issued a recommendation that Pajooh’s
complaint be dismissed as prescribed on its face. In addition, as
discussed above, Pajooh’s own complaint contradicts his claim that
harassment and retaliation caused him to delay filing his
complaint.
AFFIRMED
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