* 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that this opinion should not be published and is not precedent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. 97-40169

Summary Calendar

 

GREGORY JEROME DAY,

Plaintiff-Appellant,

versus

ROGERS, Chief, EVELYN WELLS ROBISON;

RICK BOYLE, Captain; TWO UNKNOWN NAMED,

Two unknown Named Galveston Police Officers,

Defendants - Appellees.

********

GREGORY JEROME DAY,

Plaintiff-Appellant,

versus

CHIEF ROGERS; EVELYN WELLS ROBISON;

JOHN DOE, 1; JOHN DOE, 2,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. G-96-CV-487 & G-96-CV-619

- - - - - - - - - -

September 19, 1997

Before DUHE’, DeMOSS and DENNIS, Circuit Judges.

PER CURIAM:*
No. 97-40169

-2-

Gregory Jerome Day appeals the dismissal of his suit brought

in forma pauperis under 42 U.S.C. § 1983. Day argues that the

district court abused its discretion when it dismissed his suit

under 28 U.S.C. § 1915 as time-barred. Day contends that he was

suffering from disabilities which tolled the applicable

limitations period. 

In § 1983 suits, federal courts borrow the forum state’s

personal-injury limitations period and any applicable state

tolling provisions. See Rodriguez v. Holmes, 963 F.2d 799, 803

(5th Cir. 1992). Texas has a two-year limitations period for

personal-injury actions. See TEX. CIV. PRAC. AND REM. CODE ANN. 

§ 16.003(a) (West Supp. 1997); Moore McDonald, 30 F.3d 616, 620

(5th Cir. 1994). The limitations period is tolled, however, if

the plaintiff is of unsound mind when the cause of action

accrues. See TEX. CIV. PRAC. AND REM. CODE ANN. § 16.001(a),(b)

(West 1986 & Supp. 1997).

Although state law controls the limitations period for

§ 1983 claims, federal law determines when a cause of action

accrues. Moore, 30 F.3d at 620-21. Under the federal standard,

the limitations period begins to run from the moment the

plaintiff knows or has reason to know that he has been injured

and who has inflicted the injury. Id. Day’s cause of action

accrued on April 3, 1992, when the police officers allegedly ran

into him and broke his leg. Therefore, the limitations period
No. 97-40169

-3-

for Day’s cause of action ended on April 3, 1994, unless it was

tolled by a disability. 

In his objections to the magistrate judge’s report, Day

alleged that he began taking medication in 1992 for “prior

psychosis.” Day also alleged that his treatment lasted until

October 1995. The district court did not request that Day

substantiate his allegation. If Day was of “unsound mind,” as

defined by Texas law, when his cause of action accrued, then the

limitations period would have been tolled until October 1995. 

Day’s initial complaint, which was filed on August 27, 1996,

would have been timely because it was filed within two years of

the date that his disability ended. 

The district court failed to determine whether Day was of

unsound mind when his cause of action accrued. Day’s pleadings

do not show that his complaint lacks an arguable basis in law or

fact. Therefore, the dismissal of his complaint as frivolous was

improper. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.

1997). Accordingly, the district court’s judgment dismissing

Day’s § 1983 claim is REVERSED. The case is REMANDED to the

district court so that it can address Day’s factual allegations

of unsound mind. Day’s motion for production of documents is

DENIED.

REVERSED AND REMANDED. MOTION DENIED.