IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11082
Conference Calendar
ROBERT MALONE,
Plaintiff-Appellant,
versus
DALLAS CITY MANAGERS’ OFFICE; DALLAS POLICE DEPT; DALLAS
CITIZENS/POLICE REVIEW BOARD; DALLAS D A’S OFFICE; WILLIAMS
FRIED CHICKEN; MAL BARBER & ASSOCIATES REALTORS; STATE FARM
FIRE AND CASUALTY COMPANY; MAL BARBER, Individually; RON
CAMP, Individually,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CV-447-H
--------------------
December 11, 2002
Before JOLLY, DAVIS, and JONES, Circuit Judges.
PER CURIAM:*
Robert Malone filed a complaint in the district court,
invoking 42 U.S.C. §§ 1983 & 1985, and naming as defendants
various public officials of the City of Dallas and several
private individuals and entities. The district court determined
that Malone had failed to perfect service of process against
*
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this opinion should not be published and is not precedent except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. 01-11082
-2-
several of the defendants, that Malone’s constitutional claims
are time-barred, and that Malone’s claims against the private
defendants are res judicata. Malone has appealed the district
court’s judgment dismissing the complaint with prejudice.
Malone has filed a document styled “Motion for Judicial
Notice.” To the extent that the motion requests leave to
supplement the record, the motion is denied. See Theriot v.
Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). To
the extent that the motion raises arguments pertinent to an issue
properly before the court, such arguments have been considered.
Malone contends for the first time on appeal that his
constitutional claims are governed by Texas’ four-year
limitations period applicable to fraud claims. See TEX. CIV.
PRAC. & REM. CODE ANN. § 16.004(a)(4) (West 2002). “The statute of
limitations for a suit brought under 42 U.S.C. § 1983 is
determined by the general statute of limitations governing
personal injuries in the forum state.” Piotrowski v. City of
Houston, 237 F.3d 567, 576 (5th Cir.), cert. denied, 122 S. Ct.
53 (2001). In Texas, personal injury actions are subject to a
two-year limitations period. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 16.003(a) (West 2002). The district court did not err by
applying the two-year limitation period instead of the four-year
period in dismissing Malone’s constitutional claims.
Malone has not shown that the district court abused its
discretion in refusing to permit him to amend the complaint.
No. 01-11082
-3-
Malone contends also that he did not have an opportunity to
respond to the motion to dismiss and that the case should have
been permitted to proceed to the summary judgment stage. This
issue is without merit. Although Malone’s response to the City
of Dallas’s motion to dismiss was untimely, the district court,
in granting the motion to dismiss, considered Malone’s arguments
and accepted his factual allegations as true.
Except to state that the prior court decisions rejecting his
claims are “fraudulent” and in themselves constitute additional
conspiratorial acts against him, Malone raises no issue with
respect to the district court’s alternative holding that the
claims against the private defendants are res judicata. Nor does
he raise any issue with respect to the district court’s holding
that Malone failed to serve several of the defendants.
Accordingly, these issues are abandoned. See Brinkmann v. Dallas
Co. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
The appeal is dismissed as frivolous. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. We warn
Malone that any future frivolous appeals or pleadings filed by
him or on his behalf will invite the imposition of a sanction.
APPEAL DISMISSED; SANCTION WARNING ISSUED.