IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30825

JEFFERY A. BROUSSARD,

Plaintiff-Appellant

v.

IKE BROWN; SAMUEL LACY; SERGEANT HOLMES; BILL HARRISON; 

SERGEANT SMITH; HENRY BATES,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:14-CV-720

Before DAVIS, CLEMENT and COSTA, Circuit Judges.

PER CURIAM:*

Jeffery A. Broussard, Louisiana prisoner # 613311, moves this court for 

authorization to proceed in forma pauperis (IFP) in an appeal of the district 

court’s judgment dismissing his 42 U.S.C. § 1983 action as frivolous because it 

was time barred. Broussard filed the complaint raising a claim of excessive 

force and deliberate indifference to serious medical needs. Broussard does not 

dispute the district court’s finding that he failed to file his § 1983 action within 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 8, 2015

Lyle W. Cayce

Clerk

 

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No. 14-30825

the required one-year prescriptive period. See Johnson v. Crown Enters., Inc., 

398 F.3d 339, 341 (5th Cir. 2005). Rather, he contends that he is entitled to 

tolling of the prescriptive period under the Louisiana doctrines of contra non 

valentem and continuing tort.

In denying leave to appeal IFP, a district court may “incorporate by 

reference its decision dismissing the prisoner’s complaint on the merits with or 

without supplementation,” which is the procedure used in this case. See Baugh 

v. Taylor, 117 F.3d 197, 202 n.21 (5th Cir. 1997). By moving to proceed IFP, 

Broussard is challenging the district court’s certification that his appeal is not 

taken in good faith. See id. at 202. Our inquiry into whether the appeal is 

taken in good faith “is limited to whether the appeal involves legal points 

arguable on their merits (and therefore not frivolous).” Howard v. King, 707 

F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).

State tolling law is applicable in a § 1983 action if it is not inconsistent 

with federal law or policy. Hardin v. Straub, 490 U.S. 536, 542 (1989). 

Louisiana law allows for suspension of prescription under the doctrine of 

contra non valentem. Corsey v. Louisiana, 375 So. 2d 1319, 1321-22 (La. 1979) 

The doctrine is applicable in several situations, with the most relevant to the 

instant case being, “when the defendant prevents the plaintiff from bringing 

suit.” Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999). “The continuingtort doctrine is one of accrual and thus a question of federal, rather than state, 

law.” Nottingham v. Richardson, 499 F. App’x 368, 375 & n.5 (5th Cir. 2012). 

A continuing-tort claim does not accrue until the tort has ceased. Id. 

Broussard raises a nonfrivolous issue with respect to his argument that 

he was prevented by the defendants from timely filing his § 1983 action while 

he was in custody at the Morehouse Parish Detention Center (MPDC) due to 

the fear of retaliation and the denial of access to the courts. Cf. Harris, 198 

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F.3d at 158-59. The district court did not address Broussard’s arguments for 

tolling under Louisiana law, but rather analyzed his claims using federal 

equitable tolling principles. If Broussard is entitled to tolling under the

Louisiana doctrine of contra non valentem until his release from MPDC 

custody on September 23, 2013, then his § 1983 complaint filed in March 2014 

would be deemed timely filed within the Louisiana prescriptive period. See 

Johnson, 398 F.3d at 341. Further, the district court did not consider 

Broussard’s continuing tort argument, which could also render his denial of 

medical care claim timely. See, e.g., Lavellee v. Listi, 611 F.2d 1129, 1132 (5th 

Cir. 1980). 

Because Broussard has identified a nonfrivolous issue for appeal and is 

financially eligible to proceed IFP on appeal, we grant his motion for IFP

status. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220. The district 

court’s decision dismissing Broussard’s § 1983 complaint as time barred is 

vacated and the case is remanded for further proceedings. We express no view 

regarding the disposition of Broussard’s arguments concerning the timeliness 

of his § 1983 action under the correct legal standards on remand. 

IFP MOTION GRANTED; VACATED AND REMANDED FOR 

FURTHER PROCEEDINGS.

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