* 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this opinion should not be published and is not precedent except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. 01-11082

Conference Calendar

 

ROBERT MALONE,

Plaintiff-Appellant,

versus

DALLAS CITY MANAGERS’ OFFICE; DALLAS POLICE DEPT; DALLAS

CITIZENS/POLICE REVIEW BOARD; DALLAS D A’S OFFICE; WILLIAMS

FRIED CHICKEN; MAL BARBER & ASSOCIATES REALTORS; STATE FARM

FIRE AND CASUALTY COMPANY; MAL BARBER, Individually; RON

CAMP, Individually,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:01-CV-447-H

--------------------

December 11, 2002

Before JOLLY, DAVIS, and JONES, Circuit Judges.

PER CURIAM:*

Robert Malone filed a complaint in the district court,

invoking 42 U.S.C. §§ 1983 & 1985, and naming as defendants

various public officials of the City of Dallas and several

private individuals and entities. The district court determined

that Malone had failed to perfect service of process against
No. 01-11082

-2-

several of the defendants, that Malone’s constitutional claims

are time-barred, and that Malone’s claims against the private

defendants are res judicata. Malone has appealed the district

court’s judgment dismissing the complaint with prejudice.

Malone has filed a document styled “Motion for Judicial

Notice.” To the extent that the motion requests leave to

supplement the record, the motion is denied. See Theriot v.

Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). To

the extent that the motion raises arguments pertinent to an issue

properly before the court, such arguments have been considered. 

Malone contends for the first time on appeal that his

constitutional claims are governed by Texas’ four-year

limitations period applicable to fraud claims. See TEX. CIV.

PRAC. & REM. CODE ANN. § 16.004(a)(4) (West 2002). “The statute of

limitations for a suit brought under 42 U.S.C. § 1983 is

determined by the general statute of limitations governing

personal injuries in the forum state.” Piotrowski v. City of

Houston, 237 F.3d 567, 576 (5th Cir.), cert. denied, 122 S. Ct.

53 (2001). In Texas, personal injury actions are subject to a

two-year limitations period. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.003(a) (West 2002). The district court did not err by

applying the two-year limitation period instead of the four-year

period in dismissing Malone’s constitutional claims. 

Malone has not shown that the district court abused its

discretion in refusing to permit him to amend the complaint. 
No. 01-11082

-3-

Malone contends also that he did not have an opportunity to

respond to the motion to dismiss and that the case should have

been permitted to proceed to the summary judgment stage. This

issue is without merit. Although Malone’s response to the City

of Dallas’s motion to dismiss was untimely, the district court,

in granting the motion to dismiss, considered Malone’s arguments

and accepted his factual allegations as true. 

Except to state that the prior court decisions rejecting his

claims are “fraudulent” and in themselves constitute additional

conspiratorial acts against him, Malone raises no issue with

respect to the district court’s alternative holding that the

claims against the private defendants are res judicata. Nor does

he raise any issue with respect to the district court’s holding

that Malone failed to serve several of the defendants. 

Accordingly, these issues are abandoned. See Brinkmann v. Dallas

Co. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). 

The appeal is dismissed as frivolous. See Howard v. King,

707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. We warn

Malone that any future frivolous appeals or pleadings filed by

him or on his behalf will invite the imposition of a sanction. 

APPEAL DISMISSED; SANCTION WARNING ISSUED.