* 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that this opinion should not be published and is not precedent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. 00-10467

Conference Calendar

 

ANGELO MACK,

Plaintiff-Appellant,

versus

DAVID WILLIAMS; JOHN DOE,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:99-CV-630-L

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

October 18, 2000

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Angelo Mack, Texas prisoner # 645368, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 civil rights action as

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). He argues

that the district court erred in dismissing his § 1983 action as

barred by the applicable two-year statute of limitations because

he timely filed a state action within the two-year limitations

period. Mack’s argument is without merit as the filing of a

state action has no bearing on the timeliness of the instant

federal § 1983 action. Because Mack’s § 1983 action was not
No. 00-10467 

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filed within two years of the date of his alleged injury, the

district court did not err in dismissing it as time-barred. See

Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994)(federal

§ 1983 action must be filed within two years of the date the

injury occurred); Tex. Civ. Prac. & Rem. Code § 16.003(a) (Vernon

1986) & (Vernon Supp. 2000).

For the first time on appeal, Mack argues that under Texas

law, the limitations period is tolled while he is incarcerated. 

Although Texas law formerly considered imprisonment to be a

disability which tolled the running of the statute of

limitations, the former Article 5535 and the former Article 5518

have been repealed. See Tex. Rev. Stat. Ann. Art. 5535 (repealed

1987); see Tex. Rev. Stat. Ann. Art. 5518 (repealed 1985). The

limitations period now begins to run when the cause of action

accrues at the time of the injury. See Tex. Civ. Prac. & Rem.

Code § 16.003. Mack has not demonstrated plain error in the

district court’s application of Texas law concerning the

applicable statute of limitations. See Highlands Ins. Co. v.

National Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir. 1994).

Mack’s appeal is without arguable merit and is therefore

frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983). Because the appeal is frivolous, it is DISMISSED. See

5TH CIR. R. 42.2.

Mack is cautioned that the district court’s dismissal of his

§ 1983 action and the dismissal of this appeal both count as

strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (“[D]ismissals as
No. 00-10467 

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frivolous in the district courts or the court of appeals count

[as strikes] for the purposes of [§ 1915(g)].”). Mack is also

advised that once he accumulates three strikes, he may not

proceed IFP in any civil action or appeal filed while he is

incarcerated or detained in any facility unless he is under

imminent danger of serious physical injury. See 28 U.S.C.

§ 1915(g).

Mack has also filed a motion for appointment of counsel. 

Because he has not demonstrated that this appeal involves

exceptional circumstances which warrant the appointment of

counsel, his motion is DENIED. See Santana v. Chandler, 961 F.2d

514, 515 (5th Cir. 1992); see also Cooper v. Sheriff, Lubbock

County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).

APPEAL DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;

SANCTION WARNING ISSUED.