Anthony Roberson v. Ronald Earle , 378 F. App'x 396 ( 2010 )

Case: 09-50764 Document: 00511108156 Page: 1 Date Filed: 05/12/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 12, 2010
No. 09-50764
Summary Calendar Lyle W. Cayce
Clerk
ANTHONY W ROBERSON,
Plaintiff-Appellant
v.
RONALD D EARLE; BUDDY MEYER; MARGO FRAISER; STAN HIBBS;
STANLEY L KNEE; ROBERT TRAVIS,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:09-CV-21
Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Anthony W. Roberson, Texas prisoner # 838289, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C.
§ 1915(e). He argues that the district court erred in concluding that his
complaint was not timely filed. We review for an abuse of discretion. See
Stanley v. Foster, 464 F.3d 565, 568 (5th Cir. 2006).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-50764
The statute of limitations applicable in the instant case is borrowed from
that applicable to Texas personal injury claims, which is two years. Id. Any
relevant tolling provisions of Texas law also are applicable. Jackson v. Johnson,
950 F.2d 263, 265 (5th Cir. 1992). However, “the accrual date of a § 1983 cause
of action is a question of federal law that is not resolved by reference to state
law.” Wallace v. Kato, 549 U.S. 384, 388 (2007). Under federal law, a claim
generally accrues “the moment the plaintiff becomes aware that he has suffered
an injury or has sufficient information to know that he has been injured” and
that there is a connection between his injury and the defendant’s actions.
Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001) (internal
quotation marks and citation omitted).
Roberson’s assertion that his cause of action did not accrue until the
December 2008 dismissal of his “remaining” robbery cause is without factual
support. Roberson’s own pleadings indicate that in January 2005, he became
aware that he “had better do something” because the defendants had determined
to deny him the property. Roberson’s claim thus accrued, at the latest, at that
time. See Piotrowski, 237 F.3d at 576.
Assuming, arguendo, that the continuing tort doctrine is available in the
instant factual and procedural scenario, we reject Roberson’s argument that the
defendants’ actions constituted a continuing tort. The seizure of his property
was a single act and its continued retention was merely an “ill effect” of the
original act. Roberson’s reliance on the doctrine of fraudulent concealment fails
because even accepting Roberson’s assertion that the defendants have conspired
to conceal his ownership rights to the property, they did not conceal the fact of
their deprivation of the property.
Roberson’s argument that dismissal of his complaint under § 1915 was
error because he paid a partial filing fee is without merit. Similarly, his
argument that application of the Prison Litigation Reform Act (PLRA) was
inappropriate is without merit because § 1915(e)(2)(B)(i) “requires dismissal of
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No. 09-50764
frivolous IFP actions even if they are brought by non-prisoner plaintiffs.” We
also note that following the enactment of § 1915(e), a dismissal as frivolous in
an IFP proceeding should be deemed a dismissal with prejudice unless the
district court specifies that the dismissal is without prejudice. Marts v. Hines,
117 F.3d 1504, 1506 (5th Cir. 1997) (en banc). Accordingly, the dismissal of
Roberson’s complaint with prejudice under § 1915(e) was not an abuse of
discretion.
AFFIRMED.
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