1

United States Court of Appeals

for the Fifth Circuit

No. 21-10721

Summary Calendar

Tracey Harris Coomer, 

Plaintiff—Appellant,

versus

Dr. Warner B. Massey, M.D.; Charlana Melton; Dennis 

Markgraf, Administrator; John Doe, Medical Department; Jane 

Doe, Medical Department; Benjamin Leeah, M.D.; John Doe, 

Central Grievance Office; Jane Doe, Central Grievance Office; John 

Doe, Classification; Jane Doe, Classification, 

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:18-CV-165

Before Wiener, Dennis, and Haynes, Circuit Judges.

Per Curiam:*

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opinion should not be published and is not precedent except under the limited 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

August 5, 2022

Lyle W. Cayce

Clerk

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No. 21-10721

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Texas state prisoner Tracey Harris Coomer appeals the district 

court’s sua sponte dismissal of his civil rights action. For the following 

reasons, we VACATE and REMAND.

Coomer filed this lawsuit under 42 U.S.C. § 1983 against several 

prison officials at the Texas Department of Criminal Justice, Correctional 

Institutions Division. Coomer alleges that (1) Dr. Massey assaulted him 

while he was receiving medical treatment; (2) Dr. Leeah deferred providing 

him with necessary medical treatment; and (3) other defendants fraudulently 

covered up these events. 

Because Coomer is a prisoner proceeding pro se and in forma 

pauperis, the district court screened Coomer’s complaint under 28 U.S.C. 

§§ 1915A and 1915(e)(2) to determine whether it was “frivolous, malicious, 

or fail[ed] to state a claim upon which relief may be granted.” The district 

court concluded Coomer’s claims were barred by the statute of limitations, 

dismissed the action with prejudice, and denied Coomer’s motion for 

reconsideration. Coomer timely appealed both orders and requested that this 

court appoint him counsel.

We review the district court’s dismissal of Coomer’s claims for abuse 

of discretion. See Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013). A 

complaint is frivolous if it lacks (1) an arguable basis in law because “it is 

based on an indisputably meritless legal theory” or (2) an arguable basis in 

fact “if, after providing the plaintiff the opportunity to present additional 

facts when necessary, the facts alleged are clearly baseless.” Berry v. Brady, 

192 F.3d 504, 507 (5th Cir. 1999) (quotations omitted). We must assume that 

a plaintiff's factual allegations are true, Moore v. Carwell, 168 F.3d 234, 236 

(5th Cir. 1999), and we recognize that a pro se prisoner is entitled to factually 

develop his complaint before a proper determination can be made as to 

whether it is frivolous, see Eason v. Thaler, 14 F.3d 8, 9–10 (5th Cir. 1994).

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With this standard in mind, we conclude that the district court abused 

its discretion in dismissing Coomer’s claims based on the statute of 

limitations at this stage in the proceedings. In a § 1983 suit, the applicable 

limitations period is governed by state law, Owens v. Okure, 488 U.S. 235, 

249–50 (1989), which in Texas is two years, Tex. Civ. Prac. & Rem. 

Code § 16.003(a). The district court concluded Coomer’s claims were 

barred because he filed his complaint more than two years after the date of 

the alleged injury. But in doing so, the district court overlooked that Coomer 

was statutorily required to exhaust his administrative remedies before filing 

suit, see 42 U.S.C. § 1997e, and that the limitations period may be tolled 

during that period, see Gartrell v. Gaylor, 981 F.2d 254, 257–58 (5th Cir. 1993) 

(per curiam). Because it was not clear from the face of the operative 

pleadings that Coomer’s suit was time barred, the district court abused its 

discretion in dismissing his complaint.1 

VACATED and REMANDED. The motion to appoint counsel is 

DENIED.

1 We also note that the district court failed to consider the “mailbox rule,” which 

states that a pro se prisoner’s complaint is deemed to be filed on the date that the prisoner 

submits the pleading to prison authorities to be mailed. See Houston v. Lack, 487 U.S. 266, 

276 (1988).

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