United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 2, 2006
Charles R. Fulbruge III
Clerk
No. 05-11444
Summary Calendar
JEFFERY LANE MCKINNEY,
Plaintiff-Appellant,
versus
J. WILLIAMS, Property Officer; Officer B. DAVIS, Captain;
M. HOPKINS; R. HENRY; D. DAVIS, Field Officer; AMERICAN
CORRECTION ASSOCIATION STANDARD; TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:03-CV-120
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jeffery Lane McKinney, Texas prisoner # 642497, appeals the
dismissal of his 42 U.S.C. § 1983 complaint as time-barred and,
alternatively, as frivolous and for failure to state a claim.
McKinney argues that the district court’s time-bar determination
was erroneous and that because the defendants did not answer his
complaint, the district court should have granted him a default
judgment instead of dismissing his complaint as time-barred.
*
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this opinion should not be published and is not precedent except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. 05-11444
-2-
McKinney’s property claims accrued on March 6, 2001, and his
retaliation claims and the false disciplinary claims challenging
the conditions of his confinement accrued on March 12, 2001. See
Harris v. Hegmann, 198 F.3d 153, 156-57 (5th Cir. 1999). The
two-year limitations period was tolled for a total of 116 days
while McKinney exhausted his administrative remedies, i.e., from
March 19, 2001, through July 12, 2001. See id. at 158; Rodriguez
v. Holmes, 963 F.2d 799, 803 (5th Cir. 1992). Therefore, to be
timely, all of his claims had to be filed no later than Monday,
July 7, 2003. Consequently, his complaint, filed on July 11,
2003, was time-barred.
We add that McKinney has failed to brief the district
court’s determination that his prison disciplinary claim seeking
monetary damages was barred by Heck v. Humphrey, 512 U.S. 477
(1994), and he has therefore waived its review. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Finally, because
McKinney’s complaint clearly indicated that his claims were time-
barred, the district court was authorized to dismiss the suit at
any time. 28 U.S.C. § 1915(e)(2); Harris, 198 F.3d at 156.
McKinney’s appeal lacks arguable merit and therefore is
dismissed as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983). The district court’s dismissal
of the § 1983 claims and our dismissal of this appeal count as
two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). McKinney is
No. 05-11444
-3-
cautioned that if he accumulates three strikes under § 1915(g),
he will not be able to proceed in forma pauperis 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 § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.