* 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this opinion should not be published and is not precedent except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

October 2, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-11444

Summary Calendar

JEFFERY LANE MCKINNEY,

Plaintiff-Appellant,

versus

J. WILLIAMS, Property Officer; Officer B. DAVIS, Captain;

M. HOPKINS; R. HENRY; D. DAVIS, Field Officer; AMERICAN 

CORRECTION ASSOCIATION STANDARD; TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:03-CV-120

--------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jeffery Lane McKinney, Texas prisoner # 642497, appeals the

dismissal of his 42 U.S.C. § 1983 complaint as time-barred and,

alternatively, as frivolous and for failure to state a claim. 

McKinney argues that the district court’s time-bar determination

was erroneous and that because the defendants did not answer his

complaint, the district court should have granted him a default

judgment instead of dismissing his complaint as time-barred. 
No. 05-11444

-2-

McKinney’s property claims accrued on March 6, 2001, and his

retaliation claims and the false disciplinary claims challenging

the conditions of his confinement accrued on March 12, 2001. See

Harris v. Hegmann, 198 F.3d 153, 156-57 (5th Cir. 1999). The

two-year limitations period was tolled for a total of 116 days

while McKinney exhausted his administrative remedies, i.e., from

March 19, 2001, through July 12, 2001. See id. at 158; Rodriguez

v. Holmes, 963 F.2d 799, 803 (5th Cir. 1992). Therefore, to be

timely, all of his claims had to be filed no later than Monday,

July 7, 2003. Consequently, his complaint, filed on July 11,

2003, was time-barred. 

We add that McKinney has failed to brief the district

court’s determination that his prison disciplinary claim seeking

monetary damages was barred by Heck v. Humphrey, 512 U.S. 477

(1994), and he has therefore waived its review. See Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Finally, because

McKinney’s complaint clearly indicated that his claims were timebarred, the district court was authorized to dismiss the suit at

any time. 28 U.S.C. § 1915(e)(2); Harris, 198 F.3d at 156.

McKinney’s appeal lacks arguable merit and therefore is

dismissed as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707

F.2d 215, 219-20 (5th Cir. 1983). The district court’s dismissal

of the § 1983 claims and our dismissal of this appeal count as

two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 388 (5th Cir. 1996). McKinney is
No. 05-11444

-3-

cautioned that if he accumulates three strikes under § 1915(g),

he will not be able to proceed in forma pauperis in any civil

action or appeal filed while he is incarcerated or detained in

any facility unless he is under imminent danger of serious

physical injury. See § 1915(g). 

APPEAL DISMISSED; SANCTION WARNING ISSUED.