* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-50779 

Summary Calendar

_____________________

MICHAEL W KOCH,

Plaintiff-Appellant,

v.

JOHN C SPARKS, Dr; BEXAR COUNTY ADULT DETENTION CENTER;

RALPH LOPEZ, Sheriff; BEXAR COUNTY COUNTY COMMISSIONERS

COURT

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

SA-95-CA-674

_________________________________________________________________

June 18, 1996

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Michael W. Koch appeals an order of the district court

dismissing his claim under 42 U.S.C. § 1983 as frivolous under 28

U.S.C. § 1915(d). For the reasons assigned, we vacate and

remand.

I. FACTUAL AND PROCEDURAL BACKGROUND
 

1 The Bexar County Adult Detention Center is listed as a

defendant on the district court's docket sheet. However, Koch

did not name the detention center in his original complaint.

2

On August 4, 1995, Michael W. Koch, proceeding pro se and in

forma pauperis, filed this civil rights suit against Dr. John C.

Sparks, a physician at the Bexar County Jail; Sheriff Ralph

Lopez; and the Bexar County Commissioners Court,1 alleging

improper denial of medical care while housed as a prisoner at the

Bexar County Jail.

In his complaint, Koch alleged that in March of 1993, he

began experiencing severe pain in his legs, and submitted "sick

call slips" requesting medical attention at a rate of three per

day for a period of two weeks. Koch alleged that, only after a

call to the jail by his wife, he received a cursory examination

by a physician's assistant. Koch alleged that he told the

physician's assistant that he had a history of bone marrow

infection and that the physician's assistant disregarded Koch's

requests that he review Koch's medical record, which would have

verified this history. The physician's assistant allegedly

diagnosed Koch's condition as a case of athlete's foot, and sent

him back to his cell with ointment for the treatment of foot

fungus. 

Koch was eventually examined by Dr. Sparks, who allegedly

dismissed Koch's complaints as the product of a "mental problem"

and sent Koch back to his cell with no treatment. Koch alleged
 

2 The court erroneously stated in its order that it

dismissed the claim pursuant to 42 U.S.C. § 1915(d).

3

that, approximately fifteen minutes later, he was rushed back to

the infirmary with a fever of 107.5 degrees and on the verge of

lapsing into a coma. While at the hospital, Koch was allegedly

treated for bone marrow infection and pneumonia. Koch finally

alleged that, at some point during his hospital stay, he suffered

from a stroke that paralyzed the left side of his body.

The magistrate judge to whom Koch's claim was assigned

recommended that the claim be dismissed as frivolous on the

ground that the statute of limitations applicable to the action

had lapsed prior to Koch's institution of the suit. Koch filed

objections to the magistrate's report, alleging that the stroke

which he suffered in the hospital left him with no memory of the

events giving rise to his suit for a period of five months. Koch

contended that his lack of memory prevented his cause of action

from accruing until September of 1993, and thus that his claim

was not barred by the statute of limitations.

The district court overruled Koch's objection and adopted

the magistrate judge's recommendation to dismiss Koch's claim as

frivolous pursuant to 28 U.S.C. § 1915(d) (1994).2 

II. ANALYSIS

We review the district court's order dismissing Koch's claim

for an abuse of discretion. Booker v. Koonce, 2 F.3d 114, 115

(5th Cir. 1993). Dismissal of an in forma pauperis complaint as
4

frivolous under § 1915(d) is proper only if the claims in the

complaint have no arguable basis in law or fact. See Id. at 115-

16.

Because no federal statute of limitations exists for actions

under § 1983, federal courts apply the forum state's general

personal injury limitations period. Owens v. Okure, 488 U.S.

235, 249-50 (1989); Ali v. Higgs, 892 F.2d 438, 439 (5th Cir.

1990). In Texas, the applicable limitations period is two years. 

TEX. CIV. PRAC. & REM. CODE § 16.003(a) (Vernon Supp. 1996); Burrell

v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989).

While Texas law determines the applicable limitations period

and tolling exceptions, federal law determines when a cause of

action accrues, and thus when the statute of limitations begins

to run. Id. "A state statute of limitations imposed in a § 1983

action does not run until the plaintiff is in possession of the

'critical facts' that he has been hurt and the defendant is

involved." Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir.

1988).

In determining whether the district court abused its

discretion in finding that no arguable basis in law or fact

existed to support the conclusion that Koch's claim was timely

filed, we construe the allegations contained in Koch's pleadings

liberally. Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d

94, 96 (5th Cir. 1994), cert. denied, 115 S. Ct. 220 (1994). 

Under such a construction, Koch's allegations that he was rushed
5

to the hospital nearly comatose and that he subsequently suffered

a stroke that impaired his memory for five months at least create

an arguable basis for concluding that he lacked knowledge of the

"critical facts" of his claim until September of 1993. 

Accordingly, an arguable basis in law exists that his cause of

action did not accrue until September of 1993, and thus that his

claim was timely filed. 

In overruling Koch's objections to the magistrate judge's

recommendation of dismissal under § 1915(d), the district court

reasoned that Koch's pleadings provided "no indication . . . that

[his] lack of awareness continued unabated for the ensuing two

years." This analysis misconstrues the operation of the statute

of limitations. Koch's alleged lack of awareness creates an

arguable basis in law and fact that his cause of action did not

accrue until September of 1993. Koch would have a full two

years--rather than the nineteen months suggested by the district

court--from the time that he gained awareness of the critical

facts supporting his claim in which to file suit. An arguable

basis thus exists for the conclusion that Koch's claim, filed on

August 4, 1995, is not time barred. 

III. CONCLUSION

Because an arguable basis in law and fact exists to support

the conclusion that Koch filed his claim within the relevant

limitations period, the district court abused its discretion in
6

ordering dismissal under § 1915(d). Accordingly, we VACATE the

district court's order and REMAND this cause for further

proceedings consistent with this opinion.