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. 09-50764

Summary Calendar

ANTHONY W ROBERSON,

Plaintiff-Appellant

v.

RONALD D EARLE; BUDDY MEYER; MARGO FRAISER; STAN HIBBS;

STANLEY L KNEE; ROBERT TRAVIS,

Defendants-Appellees

Appeals from the United States District Court

for the Western District of Texas

USDC No. 1:09-CV-21

Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges. 

PER CURIAM:*

Anthony W. Roberson, Texas prisoner # 838289, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C.

§ 1915(e). He argues that the district court erred in concluding that his

complaint was not timely filed. We review for an abuse of discretion. See

Stanley v. Foster, 464 F.3d 565, 568 (5th Cir. 2006).

United States Court of Appeals

Fifth Circuit

F I L E D

May 12, 2010

Lyle W. Cayce

Clerk

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No. 09-50764

2

The statute of limitations applicable in the instant case is borrowed from

that applicable to Texas personal injury claims, which is two years. Id. Any

relevant tolling provisions of Texas law also are applicable. Jackson v. Johnson,

950 F.2d 263, 265 (5th Cir. 1992). However, “the accrual date of a § 1983 cause

of action is a question of federal law that is not resolved by reference to state

law.” Wallace v. Kato, 549 U.S. 384, 388 (2007). 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

that there 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). 

Roberson’s assertion that his cause of action did not accrue until the

December 2008 dismissal of his “remaining” robbery cause is without factual

support. Roberson’s own pleadings indicate that in January 2005, he became

aware that he “had better do something” because the defendants had determined

to deny him the property. Roberson’s claim thus accrued, at the latest, at that

time. See Piotrowski, 237 F.3d at 576.

Assuming, arguendo, that the continuing tort doctrine is available in the

instant factual and procedural scenario, we reject Roberson’s argument that the

defendants’ actions constituted a continuing tort. The seizure of his property

was a single act and its continued retention was merely an “ill effect” of the

original act. Roberson’s reliance on the doctrine of fraudulent concealment fails

because even accepting Roberson’s assertion that the defendants have conspired

to conceal his ownership rights to the property, they did not conceal the fact of

their deprivation of the property. 

Roberson’s argument that dismissal of his complaint under § 1915 was

error because he paid a partial filing fee is without merit. Similarly, his

argument that application of the Prison Litigation Reform Act (PLRA) was

inappropriate is without merit because § 1915(e)(2)(B)(i) “requires dismissal of

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3

frivolous IFP actions even if they are brought by non-prisoner plaintiffs.” We

also note that following the enactment of § 1915(e), a dismissal as frivolous in

an IFP proceeding should be deemed a dismissal with prejudice unless the

district court specifies that the dismissal is without prejudice. Marts v. Hines,

117 F.3d 1504, 1506 (5th Cir. 1997) (en banc). Accordingly, the dismissal of

Roberson’s complaint with prejudice under § 1915(e) was not an abuse of

discretion.

AFFIRMED.

Case: 09-50764 Document: 00511108156 Page: 3 Date Filed: 05/12/2010