Raul Aleman, Jr. v. San Antonio Police Department , 411 F. App'x 709 ( 2011 )

Case: 10-50109 Document: 00511379430 Page: 1 Date Filed: 02/11/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 11, 2011
No. 10-50109
Summary Calendar Lyle W. Cayce
Clerk
RAUL ALEMAN, JR.,
Plaintiff-Appellant
v.
SAN ANTONIO POLICE DEPARTMENT; OFFICER M. GONZALES, #0669;
OFFICER TOMAS A. ALONSO, #2135,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:09-CV-750
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Raul Aleman, Jr., Texas prisoner # 1566499, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 suit against the San Antonio Police
Department and two of its officers. Aleman argues that the district court erred
in concluding that the suit was time barred because he presented a timely
complaint to prison officials while housed at the Bexar County Jail but that the
officials lost the complaint. He also argues that “most states” allow a litigant “up
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50109 Document: 00511379430 Page: 2 Date Filed: 02/11/2011
No. 10-50109
to (5 1/2) year’s” to file suit and that whenever a litigant appeals their claims
from one state to another, the statute of limitations changes.
A district court shall dismiss a prisoner’s in forma pauperis complaint if
the court determines, inter alia, that the complaint is frivolous. See 28 U.S.C.
§ 1915(e)(2)(B)(i). Claims that are clearly time barred are properly dismissed
under § 1915. Gonzales v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir. 1998).
Review is for an abuse of discretion. Stanley v. Foster, 464 F.3d 565, 568 (5th
Cir. 2006).
A pro se prisoner’s pleading is deemed filed on the date it is provided to
prison officials for mailing. See Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir.
1995). However, Aleman offered nothing to substantiate his claim that he
presented a timely complaint to prison officials for mailing. Aleman did not
include in his pleadings any sworn statement attesting to the alleged timely
filing. Nor did he provide a date on which he gave the filing to prison officials
for mailing. Based on such, it cannot be said that the district court’s factual
finding that Aleman did not timely file a complaint is clearly erroneous. See
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985).
Aleman does not provide any authority in support of his assertion that the
applicable statute of limitations is over five years. However, it is well-settled
that the limitations period applicable to § 1983 cases in the forum state of Texas
is the two-year period provided by Texas law. See Stanley, 464 F.3d at 568.
Aleman thus has not shown that the district court abused its discretion in
dismissing his complaint as time barred.
AFFIRMED.
2