* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41085

Summary Calendar

MELVIN STARKS

Plaintiff-Appellant

v.

Unidentified HOLLIER, Nurse; Unidentified HASHOP, Nurse Practitioner;

EARNEST CHANDLER, Warden

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:06-CV-247

Before REAVLEY, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Melvin Starks, federal prisoner # 09691-002, appeals the dismissal of his

suit filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971) wherein he claimed damages for his alleged

exposure to tuberculosis due to the defendants’ failure to follow Bureau of

Prisons policies. This court reviews the district court’s dismissal of Starks’s suit

United States Court of Appeals

Fifth Circuit

F I L E D

October 7, 2008

Charles R. Fulbruge III

Clerk
No. 07-41085

2

as time barred de novo. See Price v. City of San Antonio, Tex., 431 F.3d 890, 892

(5th Cir. 2005).

A Bivens action is analogous to an action under 42 U.S.C. § 1983 except

that § 1983 applies to constitutional violations by state, rather than federal,

actors; this court does not distinguish between Bivens and § 1983 claims. Izen

v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005). Analysis of a Bivens claim

therefore “parallel[s] the analysis used to evaluate state prisoner’s § 1983

claims.” See Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994) (citation

omitted).

Because there is no federal statute of limitations for § 1983 and Bivens

claims, federal courts apply the general personal injury limitations period and

tolling provisions of the forum state. Brown v. Nationsbank Corp., 188 F.3d 579,

590 (5th Cir. 1999); Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993) (holding

that federal court should also give effect to any applicable tolling provisions

when applying forum state’s statute of limitations). In Texas, the appropriate

statute of limitations is two years. See Cooper v. Brookshire, 70 F.3d 377, 380

n.20 (5th Cir. 1995); TEX. CIV.PRAC. & REM. CODE ANN. § 16.003(a) (West 2005).

The statute of limitations is tolled while a prisoner fulfills 42 U.S.C. § 1997e’s

administrative exhaustion requirement. See Wright v. Hollingsworth, 260 F.3d

357, 359 (5th Cir. 2001).

Although the Texas limitations period applies, federal law governs when

Starks’s claim accrued. See Harris v. Hegmann, 198 F.3d 153, 157 (5th Cir.

1999). Under federal law, a claim generally accrues “the moment the plaintiff

becomes aware that he has suffered an injury or has sufficient information to

know that he has been injured” and thatthere is a connection between his injury

and the defendant’s actions. Piotrowski v. City of Houston, 237 F.3d 567, 576

(5th Cir. 2001) (internal quotation marks and citation omitted). A plaintiff need

not know that he has a legal cause of action; he need know only the facts that

would ultimately support a claim. Id.
No. 07-41085

3

The district court held that Starks’s claims accrued no later than

September 23, 2002, the date when he was first informed that he had tested

positive for tuberculosis. Starks filed his first Bivens complaint, which preceded

the instant suit, on September 9, 2004. At that point only 14 days remained in

the two-year limitations period. See Cooper, 70 F.3d at 380 n.20. That

complaint was dismissed without prejudice pursuant to § 1997e for failure to

exhaust administrative remedies on November 1, 2004. The district court held

that the applicable statute of limitations was tolled while Starks sought

administrative relief from November 1, 2004, until his final administrative

appeal was rejected on October 28, 2005. The district court concluded that,

following applicable tolling allowances, Starks’s deadline to file a complaint was

November 11, 2005. Starks did not file the instant complaint until April 2006.

Starks contends that the district court erred in two respects. First, he

argues that the district court should have tolled the filing deadline in light of a

time extension made by the Administrative Remedy Coordinator of the Central

Office (Coordinator) during the pendency of Starks’s final administrative appeal.

As evidence of the extension, Starks attaches correspondence from the

Coordinator. This correspondence was not submitted to the district court and

therefore should not be considered by this court. See Theriot v. Parish of

Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). Moreover, the correspondence

indicates only that the Coordinator extended the date for responding to Starks’s

August 14, 2005, administrative appeal until November 19, 2005. However, as

the district court found, and as Starks himself concedes, the Coordinator

actually issued a response to Starks’s appeal on October 28, 2005. That the

Coordinator could have taken longer to issue the response has no relevant

bearing upon the district court’s time bar analysis.

Second, Starks contends that the district court erred in holding that the

tolling period attributable to the administrative review process ended on October

28, 2005, because Starks did not receive the Coordinator’s response until a later
No. 07-41085

4

date. The record reflects, however, that Starks was aware no later than

November 14, 2005 ofthe final exhaustion of his administrative remedies. Even

assuming the limitations period applicable to Starks’s claims was tolled until

that date, his complaint filed in April 2006 was untimely.”

AFFIRMED.