IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2008
No. 07-30519
Summary Calendar Charles R. Fulbruge III
Clerk
LOVE ALTONIO BROOKS
Plaintiff-Appellant
v.
FREDRICK MENIFEE; KENNETH MONTGOMERY; S AIRINGTON
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:07-CV-131
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Love Altonio Brooks, federal prisoner # 45225-053, filed a civil rights
complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971). The district court sua sponte dismissed
Brooks’s complaint as barred by the applicable one-year prescriptive
(limitations) period and overruled Brooks’s argument that he was entitled to
equitable tolling. Brooks now appeals.
*
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should not be published and is not precedent except under the limited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. 07-30519
In determining whether a statute of limitations should be tolled, federal
courts may look to state tolling provisions as well as to federal equitable tolling
doctrines if appropriate. See Burge v. Parish of St. Tammany, 996 F.2d 786, 788
(5th Cir. 1993); Rodriguez v. Holmes, 963 F.2d 799, 805 (5th Cir. 1992). This
court reviews a district court’s decision regarding equitable tolling for abuse of
discretion. Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002). Brooks has
the burden of demonstrating entitlement to equitable tolling. See id.
Under Louisiana law, limitations may be tolled if the plaintiff is legally
unable to act. Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999) This
occurs: (1) when courts are legally closed; (2) when administrative or contractual
restraints delay the plaintiff’s action; (3) when the defendant prevents the
plaintiff from bringing suit; and (4) when the plaintiff does not know nor
reasonably should know of the cause of action. Under federal law, equitable
tolling applies only rarely, usually where the plaintiff is actively misled by the
defendant or is prevented in some extraordinary way from asserting his rights.
Teemac, 298 F.3d at 457.
Approximately 30 days prior to the running of the prescriptive period,
prison officials removed Brooks’s personal and legal effects and placed them in
storage in preparation for transferring Brooks to another facility in
Pennsylvania for the taking of a deposition in a separate suit. Accordingly,
during that time, Brooks was unable to complete and file his complaint. Once
he was returned to his original facility on January 8, 2007, he acted diligently
by filing his complaint just nine days later on January 17, 2007. See Phillips v.
Donnelly, 216 F.3d 508, 511 (5th Cir.) (petitioner diligent where he filed for out
of time appeal within three days of learning state habeas petition had been
denied and filed federal habeas petition within one month of denial of out of time
appeal), reh’g granted in part on other grounds, 223 F.3d 797 (5th Cir. 2000); see
also Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995) (prisoner’s pro se civil
rights complaint is filed when delivered to prison officials for mailing).
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No. 07-30519
Our conclusions are based on Brooks’s unsworn and uncorroborated
allegations. Because the district court dismissed the complaint sua sponte
without an evidentiary hearing and prior to service of the suit on the defendants,
further development of the record is necessary. We express no opinion on the
ultimate resolution of this matter. For the foregoing reasons, the judgment of
the district court is VACATED, and this matter is REMANDED for further
proceedings consistent with this opinion.
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