IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-41208

Summary Calendar

ARTHUR POULOS,

Plaintiff-Appellant

v.

JANE JONES,

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:10-CV-449

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

Arthur Poulos, Texas prisoner # 748344, appeals the 28 U.S.C. § 1915A

dismissal of his 42 U.S.C. § 1983 complaint as frivolous because it was barred

by the applicable statute of limitations. In his complaint, he alleged that on

February 28, 2005, he sent a motion for DNA testing to Jane Jones, the County

Clerk of Delta County, who failed to file it. 

Generally, we review § 1915A dismissals as frivolous for an abuse of

discretion. Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). However, because

United States Court of Appeals

Fifth Circuit

F I L E D

August 10, 2011

Lyle W. Cayce

Clerk

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.

Case: 10-41208 Document: 00511567420 Page: 1 Date Filed: 08/10/2011
No. 10-41208

Poulos failed to file objections to the magistrate judge’s report, review is for plain

error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir.

1996) (en banc). To show plain error, Poulos must show a forfeited error that is

clear or obvious and that affects his substantial rights. See Puckett v. United

States, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, this court has

the discretion to correct the error but only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. See id. 

Because there is no federal statute of limitations for actions brought

pursuant to § 1983, federal courts borrow the forum state’s general personal

injury limitations period. Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens v.

Okure, 488 U.S. 235, 249-50 (1989). Texas has a two-year limitations period for

personal injury actions. TEX. CIV. PRAC. AND REM. CODE ANN. § 16.003(a). 

Nevertheless, federal law determines when a § 1983 cause of action accrues. 

Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993). A cause of action under

§ 1983 accrues when the aggrieved party knows, or has reason to know of, the

injury or damages which form the basis of the action. Piotrowski v. City of

Houston, 51 F.3d 512, 516 (5th Cir. 1995).

Poulos’s claim accrued no later than February 28, 2005, the date he

alleged he sent the motion for DNA testing to Jones. He complained of no other

event which could serve as a trigger date for the running of the limitations

period. Accordingly, the limitations period expired on February 28, 2007, more

than three and half years before Poulos filed his complaint on September 7,

2010. See Piotrowski, 51 F.3d at 516. Although Poulos now contends that he

sent other motions for DNA testing on October 24, 2008, and filed a motion for

a writ of mandamus on December 1, 2008, seeking to have the state court

answer his habeas application, these assertions are raised for the first time on

appeal and will not be considered. See Stewart Glass & Mirror, Inc. v. U.S. Auto

Glass Discount Centers, Inc., 200 F.3d 307, 316-17 (5th Cir. 2000). 

2

Case: 10-41208 Document: 00511567420 Page: 2 Date Filed: 08/10/2011
No. 10-41208

Poulos’s appeal is without arguable merit and, thus, frivolous. See

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Therefore, it is dismissed. 

See 5TH CIR. R. 42.2. The dismissal of this appeal and the district court’s

dismissal as frivolous count as two strikes under § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Poulos is cautioned that once

he accumulates three strikes, he may not proceed in forma pauperis 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 § 1915(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.

3

Case: 10-41208 Document: 00511567420 Page: 3 Date Filed: 08/10/2011