IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50510

Summary Calendar

MARTIN DEL OLMO,

Plaintiff-Appellant

v.

U.S. CUSTOMS & BORDER PROTECTION,

Defendant-Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:15-CV-63

Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Martin Del Olmo moves for leave to proceed in forma pauperis (IFP) in 

this appeal from the district court’s dismissal of his civil action under the 

Federal Tort Claims Act (FTCA). The district court dismissed Del Olmo’s 

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim 

on which relief may be granted based on its determination that the action had 

not been filed within the applicable limitations period.

 

* 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

September 30, 2016

Lyle W. Cayce

Clerk

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No. 15-50510

2

By moving to proceed IFP, Del Olmo is challenging the district court’s 

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

117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s 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).

Del Olmo argues that the district court erred by sua sponte dismissing 

his civil action as time barred. We have held, however, that the district court 

may raise the defense of limitations sua sponte in an action, such as this one, 

proceeding under 28 U.S.C. § 1915. See Gartrell v. Gaylor, 981 F.2d 254, 256 

(5th Cir. 1993).

The FTCA requires claimants to file an administrative claim with the

appropriate agency within two years from the accrual of a claim and within six 

months after the denial of that claim by the agency. See 28 U.S.C. § 2401(b); 

Ramming v. United States, 281 F.3d 158, 162 (5th Cir. 2001). A cause of action 

accrues within the meaning of § 2401(b) “when the plaintiff knows or has 

reason to know of the injury which is the basis of the action.” Ramming, 281 

F.3d at 162 (internal quotation and citation omitted).

Here, in early 2007, Del Olmo clearly knew of the allegedly false 

accusations of which he complains. Del Olmo does not contend that he filed a 

an administrative claim with U.S. Customs and Border Protection within the 

two-year limitations period, and indeed his own district court filings indicate 

that he did not file a tort claim with agency until after the limitations period 

established by § 2401(b) had expired. In view of the foregoing, the district court 

did not err in dismissing Del Olmo’s complaint as barred by the statute of 

limitations. See § 2401(b); Ramming, 281 F.3d at 162. We conclude that Del 

Olmo has not shown he will raise a nonfrivolous issue on appeal. 

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3

We note that it appears the appellant has died during the pendency of 

this appeal. In some circumstances, it is proper to consider substitution of a 

personal representative. See Gamble v. Thomas, 655 F.2d 568, 568 (5th Cir. 

1981). Because the appeal is frivolous, we determine no purpose would be 

served by initiating the process for a substitution. See FED. R. APP. P. 43. 

The motion for leave to proceed IFP on appeal is DENIED, and this 

appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH 

CIR. R. 42.2.

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