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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30076

Summary Calendar

HENRY JAMES

Plaintiff - Appellant

v.

SERGEANT RICHARDSON; R DARIN DAVIS; JOHNNY R SMITH;

ROBERT Y HENDERSON; LINDA RAMSAY; RICHARD STALDER;

MASTER SERGEANT POUSSON; D GENE WILSON; BRYAN WILSON;

JOANN PESHOFF; MASTER SERGEANT BENNETT; DENNIS CLOUD;

SERGEANT CHAPELL; JIM ROGERS

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana

No. 2:08-CV-646

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Former inmate Henry James appeals the dismissal of his 42 U.S.C. § 1983

lawsuit as barred by expiration of the applicable prescriptive period under

Louisiana law. During the appeal, James filed a Motion for Leave to File a

United States Court of Appeals

Fifth Circuit

F I L E D

September 24, 2009

Charles R. Fulbruge III

Clerk
No. 09-30076

2

Supplemental Brief. We grant that motion and consider the arguments raised

in the supplemental brief. For the reasons that follow, we affirm the dismissal

of James’s complaint.

James was an inmate of the Louisiana Department of Corrections until

May 18, 2007. During his incarceration, he filed at least four frivolous

complaints in forma pauperis (IFP), bringing him within the three strikes

penalty of 28 U.S.C. § 1915(g). Pursuant to that penalty, James is precluded

from proceeding IFP “while incarcerated or detained in any facility . . . unless

[he] is under imminent danger of serious physical injury.” Id.; see Adepegba v.

Hammons, 103 F.3d 383, 388 (5th Cir. 1996). He was first denied IFP status

under § 1915(g) in a civil rights claim filed in 1999.

 James filed this complaint against the Appellees on May 9, 2008, nearly

one year after his release from prison. The complaint alleges civil rights

violations occurring from 2003 up to November 7, 2005, the date when James

received an adverse ruling at a prison disciplinary hearing. His appeal of that

ruling was finally denied by prison officials on March 1, 2006. The district court

granted James permission to proceed IFP, but it subsequently denied his motion

under § 1915(d) for service of process on Appellees and dismissed the complaint

sua sponte, finding it frivolous under § 1915(e)(2)(B). The court concluded that

Louisiana’s one-year prescriptive period for James’s causes of action had ended,

at the latest, on March 1, 2007, over one year before the complaint had been

filed. James now appeals, arguing that his inability to proceed IFP while

incarcerated caused his claims to be tolled from the time of their accrual to the

date of his release from prison.

We review the district court’s dismissal for abuse of discretion. See

Gonzales v. Wyatt, 157 F.3d 1016, 1019–20 (5th Cir. 1998). Section 1915(e)(2)(B)

requires dismissal of frivolous IFP actions even if those actions are brought by

non-prisoner plaintiffs. See Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir.
No. 09-30076

3

2002). “[A] complaint . . . is frivolous where it lacks an arguable basis either in

law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “District courts

may dismiss claims . . . where ‘it is clear from the face of a complaint filed in

forma pauperis that the claims asserted are barred by the applicable statute of

limitations.’” Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (quoting

Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993) (per curiam)). For actions

brought under § 1983, federal courts look to the forum state’s limitations period

for personal injury suits. Rodriguez v. Holmes, 963 F.2d 799, 803 (5th Cir. 1992).

Under Louisiana law, the applicable prescriptive period (the civil law

analogue to a common law limitations period) is one year. LA. CIV. CODE ANN.

art. 3492; see Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir. 1989) (applying

article 3492 to § 1983 actions). A cause of action under § 1983 accrues when “the

plaintiff becomes aware that he has suffered an injury or has sufficient

information to know that he has been injured.” Helton v. Clements, 832 F.2d

332, 335 (5th Cir. 1987). Although federal courts applying state statutes of

limitations for civil rights actions by prisoners must give effect to statutes tolling

the limitations period on account of incarceration, Hardin v. Straub, 490 U.S.

536, 542–44 (1989), Louisiana has no such tolling statute, see Lambert v. Toups,

745 So. 2d 730, 733 (La. Ct. App. 1999) (citing Hampton v. Kroger Co., 658 So.

2d 209, 211 (La. Ct. App. 1995)).

The district court did not abuse its discretion in finding James’s complaint

barred by the expiration of the one-year prescriptive period. The causes of action

asserted in James’s complaint were not tolled merely as a result of James being

a prisoner. Nor did the three strikes penalty of § 1915(d) prevent James from

filing a complaint in either federal or state court; it merely revoked James’s

privilege to proceed IFP and required him to pay the appropriate filing fees. See

Adepegba, 103 F.3d at 387 (“Prisoners who are not allowed to proceed i.f.p. may

pursue their substantive claims just as anyone else by paying the filing fee.”).
No. 09-30076

4

James failed to do so; the prescriptive period for his current causes of action

accordingly expired before he filed the complaint on May 7, 2008. Because the

prescriptive period for James’s claims had expired before he filed his complaint,

the district court did not abuse its discretion in finding that the complaint lacked

an arguable basis either in law or in fact and dismissing it as frivolous.

James’s Motion for Leave to File a Supplemental Brief is GRANTED. The

judgment of the district court is AFFIRMED.