Case: 10-40075 Document: 00511225746 Page: 1 Date Filed: 09/07/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 7, 2010
No. 10-40075
Summary Calendar Lyle W. Cayce
Clerk
WEBSTER ODELL ANDERSON,
Plaintiff - Appellant
v.
BRAD LIVINGSTON; CHUCK BRISCOE; TODD FOXWORTH,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:09-CV-403
Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
Webster Odell Anderson, Texas prisoner # 783131, proceeding pro se and
in forma pauperis, appeals the dismissal, as time barred, of his civil-rights
complaint. It alleged: due to policies and personnel overseen by defendants
(Texas officials responsible for prisons), he was denied proper medical treatment
for a spider bite; and, as a result, his injury became serious, requiring surgery
and a five-month hospital stay. On appeal, Anderson contends: the district
court erred by not tolling the statutory filing period until the date he received
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-40075 Document: 00511225746 Page: 2 Date Filed: 09/07/2010
No. 10-40075
notice that his final administrative grievance had been resolved; and, because
such tolling should have applied, his complaint was timely.
We review de novo the dismissal under 28 U.S.C. § 1915A of Anderson’s
complaint, and we assume that all of Anderson’s allegations are true. Hutchins
v. McDaniels, 512 F.3d 193, 195 (5th Cir. 2007). Because there is no federal
statute of limitations for actions brought pursuant to § 1983, federal courts use
the personal-injury limitations period of the forum state. Gartrell v. Gaylor, 981
F.2d 254, 256 (5th Cir. 1993). Texas has a two-year limitations period for
personal-injury actions. Id.; see T EX. C IV. P RAC. & R EM. C ODE A NN. § 16.003(a).
A Texas prisoner may have “a colorable claim” for tolling of the two-year
limitations period during the administrative grievance process based on the
Texas “tolling rule that tolls the running of the limitations period when a person
is prevented from exercising a legal remedy by the pendency of legal
proceedings.” Gartrell, 981 F.2d at 257. Anderson does not, however, have a
colorable claim for tolling based on this rule. His final grievance was denied on
28 August 2007, and he did not sign his complaint until 29 August 2009; thus,
more than two years passed after his grievance was decided and before he could
have handed his complaint to a prison official for mailing. His claim was time-
barred even if, as he alleges, he did not receive notice of the denial until 4
September 2007. See Phillips v. Donnelly, 216 F.3d 508, 511 n.3 (5th Cir. 2000)
(holding matter was no longer “pending” where it “was decided and settled,
regardless of whether [appellant] had notice of the denial on that date”).
To the extent Anderson requests equitable tolling based on his long
recovery, limited education, and years of psychiatric care, Texas law applies. See
Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998). Anderson has not,
however, provided a Texas equitable-tolling rule or any Texas precedent
applying equitable tolling in similar circumstances. See Wallace v. Kato, 549
U.S. 384, 394 (2007) (forgoing discussion of state tolling principles in § 1983 case
where prisoner failed to cite state precedent to show equitable tolling was
2
Case: 10-40075 Document: 00511225746 Page: 3 Date Filed: 09/07/2010
No. 10-40075
applied in similar circumstances). Moreover, even if federal equitable-tolling
principles were considered, Anderson has not shown that he was prevented from
timely filing his § 1983 complaint by unusual or extraordinary circumstances
that occurred during the two years after his administrative proceedings were
resolved. See Lawrence v. Florida, 549 U.S. 327, 336 (2007).
AFFIRMED.
3