United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 16, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-31123
Summary Calendar
TERRY D. TILMON,
Plaintiff-Appellant,
versus
STEVE PRATOR; JOHN SELLS; MCCREARY, Sergeant; RANDAL TERRELL,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-CV-1087
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Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Terry D. Tilmon, # 33778-125947, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 action as frivolous and
for failure to state a claim upon which relief may be granted
under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). Tilmon argues that
the district court erred in applying Sandin v. Connor, 515 U.S.
472 (1995) because as an unsentenced prisoner, he had a liberty
interest under the Due Process Clause in not being punished
*
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that this opinion should not be published and is not precedent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. 02-31123
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absent a hearing. Tilmon filed objections in the district court
in which he argued that as an unsentenced prisoner, his status
was like that of a pretrial detainee and that Sandin v. Connor
did not apply to him. He cited Fuentes v. Wagner, 206 F.3d 335,
341-42 and n.9 (3rd Cir. 2000), in which that court held that a
convicted inmate awaiting sentencing has the status of a pretrial
detainee and thus, that Sandin does not apply. He also cited
Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000), in which
that court held that a convicted but unsentenced prisoner should
be treated as a sentenced inmate for purposes of analyzing
whether he had a liberty interest in being free from punitive
segregation, concluding that Sandin applied. The district court
stated that it had considered Tilmon’s objections, but the court
did not specifically address or engage in a discussion of
Tilmon’s objection concerning the application of Sandin.
This court notes that Tilmon’s complaint was filed more than
one year after the alleged violation. Tilmon alleged that the
due process violation occurred on April 9-11, 2001, and he did
not file his complaint until May 20, 2002. Louisiana has a one-
year prescriptive period for torts. La. Civ. Code Ann. art. 3492
(West 1994). This one-year period is the borrowed statute of
limitations for 42 U.S.C. § 1983 actions in Louisiana. Elzy v.
Roberson, 868 F.2d 793, 794 (5th Cir. 1989). This court cannot
sua sponte hold that Tilmon’s action is time-barred without his
having had an opportunity to explain why the time bar may not
No. 02-31123
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apply. See Scott v. Johnson, 227 F.3d 260, 262-63 (5th Cir.
2000). Therefore, the district court’s judgment is VACATED,
based on the district court’s failure to specifically address
Tilmon’s objections, and this case is REMANDED for the district
court to consider his objections, and to give Tilmon the
opportunity to address, and for the district court to consider,
whether Tilmon’s action is time-barred.
VACATED AND REMANDED.