IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30580
Summary Calendar
ROBERT L. WHITE,
Plaintiff-Appellant,
versus
HOWARD ZERANGUE, Etc.; ET AL.,
Defendants,
HOWARD ZERANGUE, Individually and in his official capacity
as Sheriff of St. Landry Parish; AUGUST DUROUSSEAU, Individually
and in his official capacity as Deputy Sheriff of St. Landry
Parish; J. H. WIMBERLY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-1569
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December 30, 2002
Before JONES, DUHÉ, and CLEMENT, Circuit Judges.
PER CURIAM:1
Robert L. White (White), an inmate in the St. Landry Parish
Correctional Center, appeals from the dismissal of his 42 U.S.C.
§ 1983 complaint against several state law enforcement officers for
their alleged failure to protect him from an assault by fellow
1
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that this opinion should not be published and is not precedent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.
inmates while in their custody. The attack occurred on August 20,
2000, and White filed his complaint a year and a day later. The
district court granted the defendants’ motion to dismiss, finding
that White’s claims had prescribed.
White concedes that his complaint was filed untimely on its
face, but he contends that his cause of action accrued only when he
was advised by an attorney on September 13, 2000, that he might
have a civil rights claim against the defendants. White argues
that the Louisiana civil law doctrine of contra non valentem
applies to suspend the tolling of prescription against him until he
discovered that he may have had such a claim.
The district court’s ruling on a motion to dismiss pursuant to
FED. R. CIV. P. 12(b)(6) is subject to de novo review. Oliver v.
Scott, 276 F.3d 736, 740 (5th Cir. 2002).
In actions brought under 42 U.S.C. § 1983, state law
determines whether the statute of limitations is suspended because
the plaintiff is incarcerated. Pete v. Metcalfe, 8 F.3d 214, 217
(5th Cir. 1993). Under Louisiana law, the incarceration of the
plaintiff, in and of itself, does not suspend the running of
prescription. Clark v. Mrs. Fields Cookies, 1997-0397
(La. 1/21/98), 707 So. 2d 17, 21 n.8. White does not allege any
other facts that warrant the application of the doctrine of contra
non valentem or any other tolling doctrine.
Therefore, even construing White’s complaint liberally in his
favor and assuming the truth of all the facts he had pleaded, he
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has failed to carry his burden of proving that his cause of action
has not prescribed. Oliver, 276 F.3d at 740. There is no relief
that could be granted White under any set of facts that could be
proven consistent with his conclusional allegations. Bulger, 65
F.3d at 49. Because White’s cause of action was clearly
prescribed, the district court did not err in dismissing his
complaint for failure to state a claim upon which relief can be
granted. FED. R. CIV. P. 12(b)(6). Accordingly, the judgment of the
district court is hereby
AFFIRMED.
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