IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30289
Conference Calendar
RENWICK GIBBS,
Plaintiff-Appellant,
versus
KELLY WARD, Warden;
BUTCH BELLINGER, Wade Correctional Center,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CV-1403
--------------------
August 22, 2000
Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.
PER CURIAM:*
Renwick Gibbs (Gibbs), California prisoner #93210828,
appeals the district court’s dismissal of his 42 U.S.C. § 1983
action as frivolous under 28 U.S.C. § 1915(e). Applying
Louisiana's one-year statute of limitations for tort actions, the
district court concluded that Gibbs was aware of his alleged
injury in 1996 and therefore, his § 1983 claim, filed in 1999,
had prescribed.
*
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that this opinion should not be published and is not precedent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.
No. 00-30289
-2-
When it is clear from the face of an in forma pauperis
(“IFP”) complaint that the claims asserted are barred by the
applicable statute of limitations, those claims are properly
dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
Gonzales v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir. 1998). The
dismissal of an IFP complaint as frivolous is reviewed for an
abuse of discretion. Id. at 1019.
Gibbs essentially argues that the one-year statute of
limitations applicable to his § 1983 claim should have been
tolled while he was incarcerated at the David Wade Correctional
Center because, during this time, prison officials threatened to
kill him if he pursued his claim. We do not consider the other
threats allegedly made by DWCC prison officials, namely that
prison officials threatened to put Gibbs in lock-down and never
let him go back to California if he pursued his claim, as these
facts were not before the district court. Theriot v. Parish of
Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).
Gibbs alleges that it was not until he left Louisiana, when
he no longer feared for his life, that he brought this claim.
Gibbs's argument is conclusional and unsupported. Moreover,
Gibbs does not allege when he left Louisiana. Gibbs also does
not provide any authority for his position that the statute of
limitations should have been tolled. Accordingly, even if the
circumstances of this case would warrant tolling of the
limitations period, the district court could not determine how
long the period was tolled for or how long after the limitations
period began, Gibbs actually filed his complaint.
No. 00-30289
-3-
Because Gibbs's appeal is without arguable merit and is
frivolous, it is DISMISSED. See Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983); 5th Cir. R. 42.2.
The dismissal of this appeal and the district court's
dismissal of this lawsuit as frivolous count as two strikes for
purposes of 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d
383, 388 (5th Cir. 1996). Our opinion today in Gibbs v. Foster,
No. 00-30293, also notified Gibbs that he had accumulated two
strikes. Gibbs has therefore accumulated four strikes, and he is
barred from proceeding IFP in any civil action or appeal brought
in a United States court unless he is under imminent danger of
serious physical injury. See § 1915(g).
Gibbs's motion requesting that we order Gibbs and the
defendants to take lie detector tests is DENIED AS MOOT.
APPEAL DISMISSED AS FRIVOLOUS; § 1915(g) SANCTIONS IMPOSED;
MOTION DENIED AS MOOT.