Case: 17-30053 Document: 00514309335 Page: 1 Date Filed: 01/16/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-30053
Fifth Circuit
FILED
Summary Calendar January 16, 2018
Lyle W. Cayce
JOHN THOMAS SPURLOCK, Clerk
Plaintiff-Appellant
v.
AARON JONES; CLINT SONNIER; D. PHILLIPS; BECKY CLAY; HEATHER
HOWARD; C. MAIORANA; MARY THOMAS; JOEL ALEXANDER; S. REED;
P. BRADFORD; R. CATORIE; P. ALLMENDINGER,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:16-CV-1031
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
John Thomas Spurlock, federal prisoner # 17866-045, appeals the
dismissal of his pro se, in forma pauperis (IFP) Bivens 1 lawsuit as frivolous,
pursuant to 28 U.S.C. § 1915(e)(2)(B), urging that the district court erred in
determining that it was time barred. He briefs no argument challenging the
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.
1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
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district court’s dismissal of his later-raised tort claims as improperly joined
and has thus abandoned any such argument. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas Cty. Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
We review the district court’s dismissal of the civil rights claims as
frivolous under § 1915(e)(2)(B) for an abuse of discretion. Black v. Warren, 134
F.3d 732, 734 (5th Cir. 1998). Spurlock’s claims were subject to Louisiana’s
one-year prescriptive period. See Jacobsen v. Osborne, 133 F.3d 315, 319 (5th
Cir. 1998). His claims accrued on January 30, 2015, see Harris v. Hegmann,
198 F.3d 153, 157 (5th Cir. 1999), and the instant lawsuit, filed almost 17
months later, is thus untimely on its face.
Although the limitations period was equitably tolled while Spurlock
exhausted his administrative remedies, the district court correctly determined
that his suit was untimely even with the benefit of such tolling. Spurlock’s
pleadings show that he pursued his administrative remedies to the highest
level and that they were exhausted on May 16, 2015, when the General
Counsel failed to respond to his BP-11 within the requisite 40-day period. See
28 C.F.R. §§ 542.15(a), 542.18. The instant suit, filed more than one year later,
on June 28, 2016, was thus time barred.
The thrust of Spurlock’s appellate argument is that the district court
misconstrued § 542.18. He contends that the regulation provides only that an
inmate “may consider” the absence of a reply to his administrative appeal to
be a denial, not that he “must consider” it to be so, meaning that he was not
required to consider his remedies exhausted or to file his lawsuit immediately.
However, Spurlock provides no authority for the proposition that his
administrative remedies were not exhausted despite the passage of the
deadline for the General Counsel’s response to his BP-11 or otherwise
2
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No. 17-30053
supporting his construction of § 542.18. His argument is refuted by the plain
directive of § 542.18 and by this court’s precedent. See Gates v. Cook, 376 F.3d
323, 332 (5th Cir. 2004).
Accordingly, the district court’s judgment is AFFIRMED.
3