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. 09-20062

Summary Calendar

DANIEL T MADIS,

Plaintiff-Appellant

v.

WARDEN EDWARDS; WARDEN BONE; WARDEN GINSEL,

Defendants-Appellees

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:09-CV-22

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Daniel T. Madis (“Madis”) appeals the district court’s dismissal of his

§ 1983 action. For the reasons stated below, we affirm. 

FACTS AND PROCEEDINGS

Madis, a Texas inmate proceeding pro se and in forma pauperis, filed a

civil rights lawsuit in which he alleged that prison officials denied him food from

May 26, 2005 until December 17, 2005. Madis claims to have filed over fifty

United States Court of Appeals

Fifth Circuit

F I L E D

October 1, 2009

Charles R. Fulbruge III

Clerk
No. 09-20062

2

grievances during this time, and attached several to his complaint. The most

recent attached grievance was denied on February 14, 2006. 

The district court dismissed the case sua sponte under 28 U.S.C. § 1915A

as frivolous and for failure to state a claim because it was time-barred.

According to the district judge,

plaintiff’s allegations show that his cause of action accrued on May

26, 2005. Accepting as true plaintiff’s evidentiary assertion that he

exhausted his administrative grievances on February 14, 2006, and

affording his complaint the most liberal of possible constructions,

plaintiff’s limitations expired on or about February 14, 2008. This

lawsuit was filed December 23, 2008, over ten months after

limitations expired, and is barred by limitations.

 

Madis filed this timely appeal, which he has styled an “Application for a

Certificate of Appealability” under the Antiterrorism and Effective Death

Penalty Act. Madis does not need a certificate of appealability to appeal the

dismissal of his § 1983 claim. See 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice

or judge issues a certificate of appealability, an appeal may be not be taken to

the court of appeals from (A) the final order in a habeas corpus proceeding . . . ;

or (B) the final order in a proceeding under section 2255.”). We treat Madis’s

pleading as a direct appeal of the district court’s dismissal of his complaint

under 28 U.S.C. § 1915A. 

STANDARD OF REVIEW

We review de novo the dismissal of a complaint under 28 U.S.C. § 1915A.

Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). To state a claim upon which

relief may be granted, “the plaintiff must plead enough facts to state a claim to

relief that is plausible on its face.” See In re Katrina Canal Breaches Litig., 495

F.3d 191, 205 (5th Cir. 2007) (internal quotations and citation omitted). “[A]

plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

requires more than labels and conclusions, and a formulaic recitation of the
No. 09-20062

3

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (internal citation omitted). In effect, “[f]actual allegations must

be enough to raise a right to relief above the speculative level.” Id. (internal

citation omitted); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).

While pro se complaints are held to less stringent standards than those drafted

by lawyers, “conclusory allegations or legal conclusions masquerading as factual

conclusions will not prevent a motion to dismiss.” Taylor v. Books A Million,

Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quotation omitted). 

DISCUSSION

A district court may sua sponte dismiss a complaint as frivolous on

statute-of-limitations grounds if it is clear from the complaint that the claims are

time-barred. Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). Because

§ 1983 does not provide a statute of limitations, the forum state’s general

personal injury limitations period applies. Id. In Texas, the applicable period

is two years. Stanley v. Foster, 464 F.3d 565, 568 (5th Cir. 2006) (citing Tex. Civ.

Prac. & Rem. Code Ann. § 16.003(a) (Vernon 2002)). Although the Texas

limitations period applies, federal law governs when Madis’s claim accrued. See

Harris v. Hegmann, 198 F.3d 153, 157 (5th Cir. 1999). 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). The statute of limitations is

tolled while a prisoner fulfills 42 U.S.C. § 1997e’s administrative exhaustion

requirement. See Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir. 2001).

The district court correctly determined that Madis’s claims are timebarred. Even assuming that the statute of limitations did not start running

until Madis’s final administrative grievance was denied on February 14, 2006,
No. 09-20062

4

the two-year period expired in February 2008, some ten months before Madis

filed this lawsuit in December 2008. Madis nonetheless argues that the

limitations period should be equitably tolled because he was in Administrative

Segregation during the relevant period. Madis states that “[i]n Ad Seg, we can

get no legal assistance, the Officers who deliver[] the books could not give me

any assistance with the preparation of legal documents to pursue this claim.”

Madis further writes that he “had been diligently pursuing [his] rights,” as

demonstrated by his unsuccessful attempt to obtain counsel through the Texas

Civil Rights Project. 

Madis has not shown grounds for equitable tolling. Because the Texas

statute of limitations is borrowed in § 1983 cases, Texas’s equitable tolling

principles apply. See Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998).

Neither Madis’s lack of representation nor his attempt to acquire counsel is

sufficient to toll the limitations period under Texas law. See Kelly v. City of

Wichita Falls, 65 F. App’x 508 (5th Cir. 2003) (unpublished) (finding no grounds

for equitable tolling under Texas law when plaintiff “was unable to obtain the

services of a lawyer to pursue his claims”); Robinson v. Dallas Police Dept., 275

F.3d 1080 (5th Cir. 2001) (unpublished) (rejecting argument “that limitations

should be equitably tolled under Texas law because [a prisoner was] illiterate

and because he sought the assistance of four different attorneys who should have

been protecting his rights”). Furthermore, placement in administrative

segregation or solitary confinement is generally not grounds for equitable tolling.

See, e.g., Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (holding limited

library access insufficient to establish extraordinary circumstances warranting

equitable tolling); Schaefer v. Stack, 641 F.2d 227, 228 (5th Cir. 1981) (holding

under Florida law that imprisonment, even solitary confinement without

adequate access to a law library, does not toll statute of limitations); Lindo v.

LeFever, 193 F. Supp. 2d 659, 663 (E.D.N.Y. 2002) (finding that transfers
No. 09-20062

5

between prison facilities, solitary confinement, lockdowns, and restricted access

to the law library do not qualify as extraordinary circumstances warranting

equitable tolling). Although we have found no Texas decisions directly on point,

the fact of Madis’s administrative segregation does not change our equitable

tolling analysis, especially where, as here, Madis’s only argument is that

administrative segregation affected his access to counsel, which is clearly not a

ground for equitable tolling under Texas law. Though federal courts can also

“fashion their own tolling provision[s] in exceptional situations,” Slack v.

Carpenter, 7 F.3d 418, 420 (5th Cir. 1993) (per curiam) (quotation and citation

omitted), Madis’s “unfamiliarity with the legal process [and] lack of

representation” are not grounds for equitable tolling under federal law either.

Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991). The

district court was correct to dismiss Madis’s case as frivolous.

CONCLUSION

The judgment of the district court is AFFIRMED.