IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50588
Summary Calendar
VERTIS McNEESE,
Plaintiff-Appellant,
versus
LARRY DON COOK, Administrator at
Limestone County Detention Center,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-96-CV-64
April 4, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Vertis McNeese, a Texas prisoner, challenges the district
court’s dismissal of his claim under 42 U.S.C. § 1983 against Larry
Don Cook. We agree with the district court that McNeese’s claim is
barred by the statute of limitations.
There is no federal statute of limitations for § 1983 actions.
Federal courts borrow the forum state’s limitations period for
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
general personal injuries, which in Texas is two years. TEX. CIV.
PRAC. & REM. CODE § 16.003(a) (West Supp. 1997); Owens v. Okure, 488
U.S. 235, 249-50 (1989); Burrell v. Newsome, 883 F.2d 416, 418 (5th
Cir. 1989). Federal law determines the date the cause of action
accrues. Burrell, 883 F.2d at 418. McNeese’s action accrued when
he knew or had reason to know of the injury that is the basis of
his action. Id.
On April 23, 1993, McNeese suffered an injury to his eyes and
lost personal property when prison officials used tear gas to
control a riot that was taking place outside of McNeese’s cell.
McNeese claims that he did not have reason to know of his injury
until several months later, when doctors determined that he needed
glasses to compensate for severe, permanent eye damage. He states
in his brief, however, that he “made constant complaints to the
medical departments . . . about the pain to his eyes and the
possible reason for it.”
We agree with the district court that McNeese’s cause of
action accrued on the date of the riot. He knew immediately that
the tear gas hurt his eyes and damaged his property. The fact that
he did not know the extent of the damage does not trigger the
tolling principles involved in the discovery rule. As we explained
in Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 229 (5th Cir.
1984),
If some injury is discernible when the tortious act
occurs, the time of event rule respecting statutes of
limitations applies, and the plaintiff’s cause of action
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is deemed to have accrued. If the plaintiff later
discovers that his injuries are more serious than
originally thought, his cause of action nevertheless
accrues on the earlier date, the date he realized that he
had sustained harm from the tortious act.
Even if McNeese’s first suit, filed in April of 1995, was within
the limitations period, his time expired at the latest shortly
after the district court dismissed it on August 21, 1995, for
failure to pay the $120 filing fee. McNeese cannot avoid the fact
that his complaint in this case, filed February 8, 1996, is stale.
AFFIRMED.
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