United States Court of Appeals

for the Fifth Circuit

No. 20-40424

Summary Calendar

Roderick L. Bonner, 

Plaintiff—Appellant,

versus

Pam Pace, UTMB Medical Director; UTMB; John Doe, Warden, 

Coffield Unit; William Brown, Law Library Officer; Gaye 

Karriker, Law Librarian; Lieutenant Jeffrey Catoe; 

Patrick Cooper, Warden, Coffield Unit, 

Defendants—Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:18-CV-373

Before Jones, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:*

Roderick L. Bonner, Texas prisoner # 1878165, moves for leave to 

proceed in forma pauperis (IFP) on appeal from the district court’s partial 

* Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited 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 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 4, 2022

Lyle W. Cayce

Clerk

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dismissal of his civil rights claims as frivolous and for failure to state a claim, 

grant of summary judgment in favor of Defendants-Appellees and dismissal 

of his remaining claims, and denial of postjudgment motions. By moving for 

leave to proceed IFP on appeal, Bonner challenges the district court’s 

certification that the appeal was not taken in good faith. See Baugh v. Taylor, 

117 F.3d 197, 202 (5th Cir. 1997). If we uphold the district court’s 

certification that Bonner’s appeal was not taken in good faith, we may sua 

sponte dismiss the appeal as frivolous. Id. at 202 n.24 (citing 5th Cir. R. 

42.2).

As a preliminary matter, we are “obligated to examine the basis for 

our jurisdiction, sua sponte, if necessary.” Williams v. Chater, 87 F.3d 702, 

704 (5th Cir. 1996). A timely “notice of appeal in a civil case is a jurisdictional 

requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). Only the district 

court’s June 9, 2020 denials of Bonner’s March 26 and April 8, 2020 

postjudgment motions, which are properly construed as Federal Rule of Civil 

Procedure 60 motions, are before us on appeal. See, e.g., Fed. R. App. P. 

4(a)(1)(A), (a)(4)(A), (B)(ii); United States v. One 1988 Dodge Pickup, 959 

F.2d 37, 39 (5th Cir. 1992) (holding that Rule 4(a)(4) “does not embrace a 

second Rule 59 motion that merely challenges the denial of the original Rule 

59 motion.”). Thus, to the extent Bonner seeks to appeal the January 31, 

2020 final judgment or March 19, 2020 denial of his Federal Rule of Civil 

Procedure 59(e) motions, the appeal is DISMISSED IN PART for lack of 

jurisdiction.

Here, the district court found the claims barred by the applicable 

statute of limitations, which Bonner contends was incorrect. The denial of a

Rule 60(b) motion is reviewed only for abuse of discretion, Hernandez v. 

Thaler, 630 F.3d 420, 428 (5th Cir. 2011), and “[i]t is not enough that the 

granting of relief might have been permissible, or even warranted[;] denial 

must have been so unwarranted as to constitute an abuse of discretion,”

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Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). Because no 

federal statute specifies a limitation period for § 1983 suits, federal law 

borrows the forum state’s general personal injury limitation period. Wallace 

v. Kato, 549 U.S. 384, 387-88 (2007). In Texas, that period is two years. Hitt 

v. Connell, 301 F.3d 240, 246 (5th Cir. 2002); Tex. Civ. Prac. & Rem. 

Code Ann. § 16.003(a). In addition to the limitations period, the forum 

state’s tolling principles are applied. Walker v. Epps, 550 F.3d 407, 415 (5th 

Cir. 2008). Texas applies equitable tolling sparingly, looking to whether a 

plaintiff has diligently pursued his or her rights; litigants cannot use the 

doctrine “to avoid the consequences of their own negligence.” Hand v. 

Stevens Transp., Inc. Emp. Benefit Plan, 83 S.W.3d 286, 293 (Tex. App. 2002).

Bonner does not dispute that his claim accrued on May 9, 2016, or that 

his federal complaint was not filed until July 23, 2018. While the limitations 

period was tolled during the pendency of the grievance process afforded to 

prisoners under Texas law, see Clifford v. Gibbs, 298 F.3d 328, 333 (5th Cir. 

2002), this tolled the limitations period only between May 12, 2016, and July 

18, 2016. Thus, even taking this period of tolling into account, his complaint 

was still untimely.

Instead, he contendsthat he is entitled to equitable tolling because one 

Defendant-Appellee fraudulently concealed her involvement in the removal 

of his medical box until 2018 and because the library staff deliberately 

prevented him from filing his lawsuit in time by withholding papers and 

refusing to file his suit. While Texas recognizes tolling based on fraudulent 

concealment, Valdez v. Hollenbeck, 465 S.W.3d 217, 229 (Tex. 2015), it tolls 

the limitations period only “until the claimant, using reasonable diligence, 

discovered or should have discovered the injury,” Thompson v. Deutsche Bank 

Nat’l Tr. Co., 775 F.3d 298, 307 (5th Cir. 2014) (internal quotation marks and 

citation omitted). Bonner was aware of this party’s potential involvement as 

early as May 12, 2016, and nevertheless waited until July 2018 to file suit. 

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And as to the library staff, because Bonner failed to establish that he actively 

pursued his judicial remedies or that he otherwise acted diligently, the 

district court did not abuse its discretion by concluding that equitable tolling 

was not warranted. See Bailey v. Gardner, 154 S.W.3d 917, 920 (Tex. App. 

2005); Hernandez, 630 F.3d at 428.

As Bonner has failed to identify a nonfrivolous issue for appeal, he has 

failed to demonstrate that the district court erred by certifying that an appeal 

would not be taken in good faith. The motion for leave to proceed IFP is 

DENIED, and his appeal is DISMISSED IN PART as frivolous. See 

Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2.

Finally, Bonner has two prior strikes under 28 U.S.C. § 1915(g). See

Bonner v. Roberts, 54 F. App’x 410 (5th Cir. 2002) (No. 02-10296); Bonner v. 

Tarrant Cnty. Sheriff’s Dept., No. 4:08-CV-248-Y, 2009 WL 1532044, 3 

(N.D. Tex. May 28, 2009). He is cautioned that if he accumulates three 

strikes under § 1915(g), 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.” § 1915(g).

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