### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-20863 Summary Calendar

JAKE EARL HENDRIX, Plaintiff-Appellant

v. S H E RIFF TOMMY THOMPSON; MENTAL HEALT H D E PARTM E NT O F T H E HARRIS COUNTY JAI L AND JAILERS; BILL MOORE, Assistant District Attorney; FRANCES MARIAN NORTHCUTT; HARRIS COUNTY JAIL ADMINISTRATORS, Defendants-Appellees

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:10-CV-2233

Before KING, JOLLY, and GRAVES, Circuit Judges. PER CURIAM: * Jake Earl Hendrix, Texas prisoner # 1415745, appeals from the dismissal of his in forma pauperis 42 U.S.C. § 1983 suit alleging that a series of civil rights and other constituti o nal violations took place following his arrest for sexual assault in October 2006. The district court held that He n dr ix’s suit was time barred and dismissed it p u r s u a nt to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 9, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-20863 Document: 00511566076 Page: 1 Date Filed: 08/09/2011No. 10-20863

state a claim on whic h r e lief may be granted. This court reviews dismissals under § 1915(e)(2)(B)(ii) de novo, using the same standard of review applicable to Federal Rule of Civil Procedure 12(b)(6) dismissals. Harris v. Hegmann , 198 F.3d 153, 156 (5th Cir. 1999). We review the district court’s denial of Hendrix’s motion to amend or alter judgment pursuant to Federal Rule of Civil Procedure 59(e) for an abuse of dis c r e tion. See Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 677 (5th Cir. 2010). B e c a use there is no federal statute of limitations for actions brough t pursuant to § 1983, federal courts borrow the forum s t ate’s general personal injury limitations period. Owens v. Okure , 488 U.S. 235, 249- 5 0 ( 1 9 89); Ali v. Higgs , 892 F.2d 438, 4 39 (5th Cir. 1990). Contrary to Hendrix’s contentions, Texas, not Florida, is the forum state in the instant case, and the district court correctly applied a two-year statute of limitations. See Ali , 892 F.2d at 439; T E X
. C IV
. PRA C
. A N D R E M
. C O D E AN N . § 16.003(a). Although Texas law governs the length of the limitations period and the tolling exceptions, federal law governs when Hendrix’s causes of action accrued. See Burrell v. Newsome , 883 F.2d 416, 418 (5th Cir. 1989). Hendrix is incorrect that his claims accrued when he became aware of his legal recourse; rather, they accrued when he knew of the facts t h a t s u p p o r t his claims. See Piotrowski v. City of Houston , 51 F.3d 512, 516 (5th Cir. 1995). Whether Hendrix’s alleged mental incapacitation constitutes a ground for tolling is governed by Texas law. See Burrell , 883 F.2d at 418

. A person has a legal disability warranting tolling under Texas law if that person is of “unsound

m i n d” at the time that an action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.001(a)(2) and (b); Grace v. Colorito , 4 S.W.3d 765, 769 (Tex. Ct. App. 1999). Even if this court assumes that Hendrix was not mentally competent, and that the statute of limitations f or filing his § 1983 suit was tolled, until he f i l e d h i s 28 U.S.C. § 2254 petition on February 19, 2008, the statute of limitations ran out

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on February 19, 2010, such that his June 22, 2010, suit remains untimely. See T E X
. C IV
. P RA C
. A N D R E M
. C O D E AN N . § 16.003(a). The judgment of t he district court and its denial of Hendrix’s Rule 59(e) motion to are AFFIRMED. Hendrix’s motion for remand and release pending a retrial is DENIED. We admonish Hendrix that, to the extent that he wishes to seek further habeas relief, he must first seek and receive leave to do so pursuant to 28 U.S.C. § 2244(b)(3).

3 Case: 10-20863 Document: 00511566076 Page: 3 Date Filed: 08/09/2011