United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 17, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-20466
Conference Calendar
PATRICK WAYNE BELL,
Plaintiff-Appellant,
versus
CITY OF HOUSTON; STEVEN FISHER; CLARENCE O’NEAL BRADFORD,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-5885
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Patrick Wayne Bell, a Texas prisoner (# 1190375), appeals
the district court’s sua sponte dismissal of his pro se, in forma
pauperis (“IFP”) 42 U.S.C. § 1983 civil rights complaint as
frivolous and for failure to state a claim, pursuant to 28 U.S.C.
§ 1915(e)(2)(B). In the complaint, which was filed in early
December 2003, Bell alleged that defendant Steven Fisher, a
police officer, subjected him to excessive force by shooting him
in the knee and kicking him in the mouth during an apparent
arrest on September 13, 2001. The district court concluded that
*
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this opinion should not be published and is not precedent except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. 04-20466
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Bell’s complaint was barred by the applicable two-year Texas
limitations statute for personal-injury actions.
In the 42 U.S.C. § 1983 context, a federal court “borrows” a
statute of limitations from the forum state’s general
personal-injury limitations provision. See Jacobsen v. Osborne,
133 F.3d 315, 319 (5th Cir. 1998). In Texas, that period is two
years. Hitt v. Connell, 301 F.3d 240, 246 (5th Cir. 2002). A
federal court also gives effect to the state’s tolling
provisions. Slack v. Carpenter, 7 F.3d 418, 419 (5th Cir. 1993).
“[A] § 1983 action generally accrues when a plaintiff ‘knows or
has reason to know of the injury which is the basis of the
action.’” Harris v. Hegmann, 198 F.3d 153, 157 (5th Cir. 1999)
(citation omitted); see Jacobsen, 133 F.3d at 319 (federal law
determines when action accrues).
Although Bell does not explicitly deny that his claim
accrued for federal purposes on September 13, 2001, and that his
complaint was not filed until more than two years later, he
argues that his complaint was timely filed under various Texas
tolling and accrual doctrines. These arguments are meritless.
Our review of the record confirms that the district court did not
abuse its discretion in dismissing Bell’s complaint as frivolous.
See Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001); 28
U.S.C. § 1915(e)(2)(B)(i).
Bell’s appeal is without arguable merit. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, we DISMISS
the appeal as frivolous. 5TH CIR. R. 42.2. The dismissal of the
instant appeal as frivolous counts as a strike for purposes of
No. 04-20466
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the three-strikes provision, 28 U.S.C. § 1915(g), as does the
district court’s dismissal. See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). Bell is CAUTIONED that if 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).
APPEAL DISMISSED; SANCTION WARNING ISSUED.