1Rule 4 was extensively revised in the 1993 Amendments to

the Federal Rules. Much of the language of the former

subdivision (j) is now contained in subdivision (m). See

FED.R.CIV.P. 4 advisory committee's note. None of the parties

contends that the 1993 Amendments to Rule 4 in any way affect

this case. All references in this opinion to Rule 4(j) refer to

the former Rule 4(j), as it existed prior to the 1993 Amendments. 

1

United States Court of Appeals,

Fifth Circuit.

No. 94-30440

Summary Calendar.

Lisa H. HAWKINS, Individually and as Natural Tutrix of rpi Jammie

K. Hawkins, rpi Latoya F. Hawkins, rpi Johnnie V. Hawkins, and

Richard Hawkins, Plaintiffs-Appellants,

v.

Tom E. McHUGH, Individually and in his official capacity as Mayor

of the City of Baton Rouge, Wayne Rogillio, Individually and in his

capacity as former Chief of Police of the Baton Rouge Police

Department, Sergeant K. Clark, Individually and in his capacity as

a member of the Baton Rouge Police Department, and the City of

Baton Rouge, La., Defendants-Appellees.

Feb. 23, 1995.

Appeal from the United States District Court for the Middle

District of Louisiana.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

The issue in this case is whether, in an action brought

pursuant to 42 U.S.C. § 1983 where the applicable statute of

limitations is borrowed from Louisiana law, the filing of a

complaint which is later dismissed because it was not served upon

the defendant within the 120 days allowed by the former FED.R.CIV.

P. 4(j)1 interrupts the prescriptive period and tolls prescription.
2

We hold that it does not.

FACTS

Lisa H. Hawkins, et al. (Appellants) are the surviving family

members of Johnnie Edward Hawkins, who died on December 17, 1990,

as a result of a gunshot wound inflicted by a Baton Rouge Police

Officer. A complaint seeking damages under 42 U.S.C. § 1983 was

filed on December 17, 1991 in the United States District Court for

the Middle District of Louisiana.

Appellants did not serve the defendants within 120 days as

required by Rule 4(j), and the district court dismissed the action

pursuant to that rule. The Appellants appealed that dismissal, and

while the appeal was pending filed a second, identical complaint.

When this Court affirmed the dismissal of the first action,

the Appellees filed a motion to dismiss the second complaint on the

grounds that it was time-barred. The district court granted the

motion and dismissed the Appellants' action by order issued on June

22, 1994. The district court held that the Federal Rules applied

to the situation, and that under the Federal Rules applied to the

situation, and that under the Federal Rules the filing of the first

complaint had not interrupted the prescriptive period. Thus the

second complaint, filed more than one year after the incident

giving rise to the action, the suit was untimely.

STANDARD OF REVIEW

We review the district court's grant of summary judgment de

novo. Degan v. Ford Motor Co., 869 F.2d 889 (5th Cir.1989).

Summary judgment is proper where there is no genuine issue as to
3

any material fact and the moving party is entitled to a judgment as

a matter of law. FED.R.CIV.P. 56(c). The appellate court must

affirm the district court's judgment if the result is correct, even

if the judgment is based on improper ground. Stegmaier v.

Trammell, 597 F.2d 1027 (5th Cir.1979); see also 10 C. WRIGHT, A.

MILLER, AND M. KANE, FEDERAL PRACTICE AND PROCEDURE § 2716 (1983).

DISCUSSION

 In an action brought in federal court pursuant to 42 U.S.C.

§ 1983, the court "borrows" the forum state's statute of

limitations for personal injury actions. Wilson v. Garcia, 471

U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In this case, the

applicable rule of limitations is the one-year prescriptive period

established by Article 3492 of the Louisiana Civil Code.

In § 1983 actions, a state statute of limitations and the

coordinate tolling rules are in most cases binding rules of law

which a federal court is authorized to disregard only if the state

law is inconsistent with the Constitution and laws of the United

States. Board of Regents of University of State of N.Y. v.

Tomanio, 446 U.S. 478, 484-85, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440

(1980). Under Tomanio, we must identify the Louisiana rule of

tolling and determine whether that rule is inconsistent with

federal law. Id. at 486, 100 S.Ct. at 1796. Although Tomanio

makes it clear that there is no policy embodied in § 1983 that

requires any particular tolling rules. Id. at 488, 100 S.Ct. at

1797, this does not preclude the possibility that Rule 4(j) might

embody a policy requiring that the applicable statute of
4

limitations not be tolled.

 Rule 4(j) provides that if service of summons and complaint

is not made on the defendant within 120 days after the filing of

the complaint, the court shall dismiss the action without prejudice

as to that defendant. A federal court that dismisses without

prejudice a suit arising from a federal statutory cause of action

has not adjudicated the suit on its merits, and leaves the parties

in the same legal position as if no suit had been filed. Hilbun v.

Goldberg, 823 F.2d 881, 883 (5th Cir.1987), cert. denied, 485 U.S.

962, 108 S.Ct. 1228, 99 L.Ed.2d 427 (1988). We have recognized

that a such a dismissal will result in an action being time-barred

if the applicable statute of limitations has run after the filing

of the complaint. See Norlock v. City of Garland, 768 F.2d 654,

658 (5th Cir.1985).

We need not decide whether Rule 4(j) expresses a policy that

would require that a statute of limitations not be tolled during

the pendency of a suit that is later dismissed for failure to

serve, or whether that result is merely a fortuitous consequence of

the application of the Rule that would yield to a conflicting state

policy because there is no conflict between the federal rule and

the applicable state rule.

Louisiana law provides that "[i]nterruption is considered

never to have occurred if the plaintiff abandons, voluntarily

dismisses, or fails to prosecute the suit at trial." LA.CIV.CODE

ANN. art. 3463. Appellants contend that, since Louisiana courts

lack the power to enter involuntary dismissals for failure to serve
5

the defendant within 120 days, art. 3463 should be read narrowly to

provide for the annulment of interruption of prescription only

under its enumerated conditions: if the plaintiff abandons [after

five years, under LA.CODE CIV.PROC.ANN. art. 561], voluntarily

dismisses, or fails to prosecute the suit at trial. We considered

substantially the same argument in Hilbun and rejected it. See

Hilbun, 823 F.2d at 883-84.

In Hilbun, we considered the effect of involuntary dismissal

for failure to prosecute pursuant to FED.R.CIV. P. 41(b). We

concluded that if Louisiana courts had the same broad procedural

power given federal courts to dismiss for failure to prosecute, the

exercise of that power would lead to the same consequences as

abandonment under Article 3463; the legal result would be the same

as if no suit had ever been filed. Hilbun, 823 F.2d at 884. We

see no relevant difference between dismissal for failure to

prosecute under Rule 41(b) and dismissal for failure to serve under

Rule 4(j). We believe that Louisiana courts would attach the same

consequences to a dismissal for failure to serve under Rule 4(j) as

to an abandonment under Article 3463.

We hold that a dismissal under Rule 4(j) annuls the suspension

of prescription where Louisiana law provides the rules of

limitations. Because there is no conflict between state and

federal law, we do not decide whether a federal rule requires that

a suit dismissed under Rule 4(j) not toll the statute of

limitations in a § 1983 action in the face of a contrary state

rule.
6

CONCLUSION

The judgment of the district court is AFFIRMED.