United States Court of Appeals

for the Fifth Circuit ____________

No. 23-10950

Summary Calendar

____________

William Andrews, 

Plaintiff—Appellant, 

versus

Robert Johnson; Daniel McAninch; Jacob Palos, 

Defendants—Appellees. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:23-CV-871

______________________________

Before Jones, Higginson, and Ho, Circuit Judges.

Per Curiam:*

William Andrews, Texas prisoner # 02402581, seeks leave to proceed 

in forma pauperis (IFP) to appeal the district court’s dismissal of his 

42 U.S.C. § 1983 complaint, in which he alleged that three police officers 

used excessive force against him during their pursuit and arrest of him. The 

_____________________

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should not be published and is not precedent except under the limited circumstances set 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

February 7, 2024

Lyle W. Cayce

Clerk

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district court dismissed Andrews’s complaint, finding that it was barred by 

Texas’s two-year statute of limitations governing personal-injury actions. By 

moving in this court to proceed IFP, Andrews is challenging the district 

court’s certification that any appeal would not be taken in good faith because 

he had not shown that he will present a nonfrivolous appellate issue. See

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

Before this court, Andrews argues that he is entitled to tolling of the 

limitations period under Texas’s fraudulent concealment doctrine because 

he was unconscious during the subject incident and did not learn of the 

officers’ alleged use of excess force until long after it occurred. However, 

Andrews claimed that the alleged assault resulted in severe injuries, and a 

reasonably prudent person who suffered similar injuries would have

investigated the cause of such injuries at the time or shortly after regaining

consciousness. See King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 764 

(5th Cir. 2015). Though he alleged that he could not have discovered the 

cause of his injuries due to the existence of a “possible choreographed 

attempt to cover-up the misconduct of” the officers, his allegation is largely 

speculative and insufficiently specific under applicable pleading standards. 

See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Andrews additionally contends that he is entitled to operation of the 

federal “discovery rule” insofar as his cause of action did not accrue until he 

was provided with copies of various police reports two days after the 

limitations period lapsed. However, Andrews has not shown entitlement to 

the “discovery rule” because he fails to detail any meaningful or reasonably 

diligent steps that he took to investigate or discover the cause of his injuries

prior to his alleged receipt of the reports. See In re FEMA Trailer 

Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 190 (5th Cir. 2011), abrogated 

in part on other grounds by United States v. Kwai Fun Wong, 575 U.S. 402, 407 

(2015).

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Finally, Andrews fails to reprise his claim that he is entitled to 

application of Texas’s equitable tolling doctrine. Any such claim is 

abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also 

Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 

1987).

Andrews has failed to raise a nonfrivolous issue for appeal. Thus, the 

appeal lacks arguable merit and is frivolous. See Howard v. King, 707 F.2d 

215, 220 (5th Cir. 1983). Accordingly, the motion for leave to proceed IFP 

and the motion for the appointment of counsel are DENIED, and the appeal 

is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5th Cir. 

R. 42.2.

The district court’s dismissal of Andrews’s complaint for failure to 

state a claim and the dismissal of this appeal as frivolous each count as strikes 

under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th 

Cir. 1996), abrogated in part on other grounds by Coleman v. Tollefson, 575 U.S. 

532, 537 (2015). Andrews is WARNED that if he accumulates three strikes, 

he will not be permitted to proceed IFP in any civil action or appeal filed while 

incarcerated or detained in any facility unless he is under imminent danger of 

serious physical injury. See § 1915(g).

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