IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10467
Conference Calendar
ANGELO MACK,
Plaintiff-Appellant,
versus
DAVID WILLIAMS; JOHN DOE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:99-CV-630-L
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October 18, 2000
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Angelo Mack, Texas prisoner # 645368, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 civil rights action as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). He argues
that the district court erred in dismissing his § 1983 action as
barred by the applicable two-year statute of limitations because
he timely filed a state action within the two-year limitations
period. Mack’s argument is without merit as the filing of a
state action has no bearing on the timeliness of the instant
federal § 1983 action. Because Mack’s § 1983 action was not
*
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that this opinion should not be published and is not precedent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. 00-10467
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filed within two years of the date of his alleged injury, the
district court did not err in dismissing it as time-barred. See
Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994)(federal
§ 1983 action must be filed within two years of the date the
injury occurred); Tex. Civ. Prac. & Rem. Code § 16.003(a) (Vernon
1986) & (Vernon Supp. 2000).
For the first time on appeal, Mack argues that under Texas
law, the limitations period is tolled while he is incarcerated.
Although Texas law formerly considered imprisonment to be a
disability which tolled the running of the statute of
limitations, the former Article 5535 and the former Article 5518
have been repealed. See Tex. Rev. Stat. Ann. Art. 5535 (repealed
1987); see Tex. Rev. Stat. Ann. Art. 5518 (repealed 1985). The
limitations period now begins to run when the cause of action
accrues at the time of the injury. See Tex. Civ. Prac. & Rem.
Code § 16.003. Mack has not demonstrated plain error in the
district court’s application of Texas law concerning the
applicable statute of limitations. See Highlands Ins. Co. v.
National Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir. 1994).
Mack’s appeal is without arguable merit and is therefore
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is DISMISSED. See
5TH CIR. R. 42.2.
Mack is cautioned that the district court’s dismissal of his
§ 1983 action and the dismissal of this appeal both count as
strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (“[D]ismissals as
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frivolous in the district courts or the court of appeals count
[as strikes] for the purposes of [§ 1915(g)].”). Mack is also
advised that once he accumulates three strikes, he may not
proceed IFP in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
Mack has also filed a motion for appointment of counsel.
Because he has not demonstrated that this appeal involves
exceptional circumstances which warrant the appointment of
counsel, his motion is DENIED. See Santana v. Chandler, 961 F.2d
514, 515 (5th Cir. 1992); see also Cooper v. Sheriff, Lubbock
County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
APPEAL DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
SANCTION WARNING ISSUED.