Summary
In Lee v. Karriker, 6:08-CV-328, 2009 WL 3590093 (E.D. Tex., Aug. 17, 2009, aff'd 2010 WL 2546122 (5th Cir., June 24, 2010), this Court stated that “the Ninth Circuit's reasoning in Burnsworth differs from applicable Fifth Circuit precedent, ” citing Malchi and Johnson v. Rodriguez, 100 F.3d 299, 308-10 (5th Cir. 1997).
Summary of this case from Douglas v. Dir., TDCJ-CIDOpinion
No. 09-40968 Summary Calendar.
June 24, 2010.
Robert James Lee, Tennessee Colony, TX, pro se.
Appeal from the United States District Court for the Eastern District of Texas, USDC No. 6:08-CV-328.
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
Robert James Lee, Texas prisoner # 1094546, appeals the dismissal of his 42 U.S.C. § 1983 complaint as untimely filed and frivolous, and for failure to state a claim upon which relief may be granted. Lee seeks the removal of a 2003 notation in his prison records indicating that he once took part in an escape plot. He says the entry of the notation — a "security precaution designator" — violates his constitutional rights because he was not afforded a disciplinary hearing.
By his own admission, Lee first learned of the existence of the escape notation in his record at a classification hearing on August 14, 2003. It was on this date, then, that he became aware of the facts that might ultimately support a claim. Yet Lee filed this federal complaint on June 14, 2008, well after the two-year statute of limitations had run. He puts forth no legitimate reason to excuse this tardiness so we find his lawsuit timebarred. And at any rate, Lee's alleged injuries do not implicate the deprivation of a constitutional right. We AFFIRM the district court's dismissal of Lee's § 1983 action.
See Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001); see also Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994).
See Stanley v. Foster, 464 F.3d 565, 568 (5th Cir. 2006) (applying Texas law's two-year statute of limitations to a Texas prisoner's § 1983 suit).
See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990) (plaintiff must exercise due diligence to qualify for equitable tolling); Rogers v. Ardella Veigel Inter Vivos Trust No. 2, 162 S.W.3d 281, 290 (Tex.App.-Amarillo 2005, pet. denied) (continuing tort only exists when wrongful conduct is repeated over a period of time); Booker v. Real Homes, Inc., 103 S.W.3d 487, 493 (Tex.App.-San Antonio 2003, pet. denied) (no fraudulent concealment when defendant did not have actual knowledge of the wrong) (emphasis added).
See Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000); Madison v. Parker, 104 F.3d 765, 767-68 (5th Cir. 1997).
That said, Lee is entitled to a partial refund of the fee incurred in filing this lawsuit in the district court: according to our math, he overpaid. We VACATE the district court's judgment denying a refund, and DIRECT that court's clerk to refund any overpayment.