IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30334
Conference Calendar
FELIX ANTHONY PRICE,
Plaintiff-Appellant,
versus
RICHARD L. STALDER; GARY YOUNG;
JOHN P. WHITLEY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 00-CV-952-D
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August 21, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Felix Anthony Price appeals the dismissal of his 42 U.S.C.
§ 1983 complaint as frivolous and for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)&(ii). Price argues that
the district court erred in determining that his complaint, which
alleged a denial of his constitutional right to access to the
courts, was not timely filed.
We review a determination by a district court that a case is
frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of
*
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that this opinion should not be published and is not precedent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. 01-30334
-2-
discretion. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997). A dismissal based on failure to state a claim pursuant to
§ 1915(e)(2)(B)(ii) is reviewed de novo. Harris v. Hegmann, 198
F.3d 153, 156 (5th Cir. 1999).
A one-year limitations period applies to 42 U.S.C. § 1983
claims filed in Louisiana federal district courts. See Harris,
198 F.3d at 156-57 (federal courts borrow statutes of limitations
of forum state for claims brought under 42 U.S.C. § 1983). The
one-year limitations period is tolled during the time a prisoner
seeks state administrative remedies pursuant to the exhaustion
requirement of 42 U.S.C. § 1997e. Id. at 158-59. The
limitations period for the filing of Price’s 42 U.S.C. § 1983
claim was not tolled during the time he sought administrative
review of the circumstances surrounding a prison attack--an issue
wholly distinct from his denial-of-access-to-the courts claim.
“Under federal law, a section 1983 action generally accrues
when a plaintiff ‘knows or has reason to know of the injury which
is the basis of the action.’” Id. at 157 (quoting Burrell v.
Newsome, 883 F.2d 416, 418 (5th Cir. 1989). If Price’s
allegation that he did not discover until March 13, 1996, that
Officer Young did not deliver his petition for review in a timely
fashion is taken as true, Price had until March 13, 1997, to file
his denial-of-access-to-the-courts claim. His alleged filing of
case No. 99-CV-172 on February 22, 1999, could not have tolled
the limitations period on the denial-of-access-to-the-courts
claim because it was filed almost two years after March 13, 1997.
No. 01-30334
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The district court’s dismissal of Price’s complaint as
frivolous and the dismissal of 99-CV-172 as frivolous count as
two “strikes” for the purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Price
is CAUTIONED that if he accumulates three “strikes” under 28
U.S.C. § 1915(g), he will not be able to proceed in forma
pauperis (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).
The judgment of the district court is AFFIRMED.