Case: 23-10950 Document: 00517058559 Page: 1 Date Filed: 02/07/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10950
Summary Calendar FILED
____________ February 7, 2024
Lyle W. Cayce
William Andrews, Clerk
Plaintiff—Appellant,
versus
Robert Johnson; Daniel McAninch; Jacob Palos,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:23-CV-871
______________________________
Before Jones, Higginson, and Ho, Circuit Judges.
Per Curiam: *
William Andrews, Texas prisoner # 02402581, seeks leave to proceed
in forma pauperis (IFP) to appeal the district court’s dismissal of his
42 U.S.C. § 1983 complaint, in which he alleged that three police officers
used excessive force against him during their pursuit and arrest of him. The
_____________________
*
Pursuant to 5th Circuit Rule 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should not be published and is not precedent except under the limited circumstances set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 Circuit Rule 47.5.4.
Case: 23-10950 Document: 00517058559 Page: 2 Date Filed: 02/07/2024
No. 23-10950
district court dismissed Andrews’s complaint, finding that it was barred by
Texas’s two-year statute of limitations governing personal-injury actions. By
moving in this court to proceed IFP, Andrews is challenging the district
court’s certification that any appeal would not be taken in good faith because
he had not shown that he will present a nonfrivolous appellate issue. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Before this court, Andrews argues that he is entitled to tolling of the
limitations period under Texas’s fraudulent concealment doctrine because
he was unconscious during the subject incident and did not learn of the
officers’ alleged use of excess force until long after it occurred. However,
Andrews claimed that the alleged assault resulted in severe injuries, and a
reasonably prudent person who suffered similar injuries would have
investigated the cause of such injuries at the time or shortly after regaining
consciousness. See King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 764
(5th Cir. 2015). Though he alleged that he could not have discovered the
cause of his injuries due to the existence of a “possible choreographed
attempt to cover-up the misconduct of” the officers, his allegation is largely
speculative and insufficiently specific under applicable pleading standards.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Andrews additionally contends that he is entitled to operation of the
federal “discovery rule” insofar as his cause of action did not accrue until he
was provided with copies of various police reports two days after the
limitations period lapsed. However, Andrews has not shown entitlement to
the “discovery rule” because he fails to detail any meaningful or reasonably
diligent steps that he took to investigate or discover the cause of his injuries
prior to his alleged receipt of the reports. See In re FEMA Trailer
Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 190 (5th Cir. 2011), abrogated
in part on other grounds by United States v. Kwai Fun Wong, 575 U.S. 402, 407
(2015).
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No. 23-10950
Finally, Andrews fails to reprise his claim that he is entitled to
application of Texas’s equitable tolling doctrine. Any such claim is
abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
Andrews has failed to raise a nonfrivolous issue for appeal. Thus, the
appeal lacks arguable merit and is frivolous. See Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983). Accordingly, the motion for leave to proceed IFP
and the motion for the appointment of counsel are DENIED, and the appeal
is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5th Cir.
R. 42.2.
The district court’s dismissal of Andrews’s complaint for failure to
state a claim and the dismissal of this appeal as frivolous each count as strikes
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th
Cir. 1996), abrogated in part on other grounds by Coleman v. Tollefson, 575 U.S.
532, 537 (2015). Andrews is WARNED that if he accumulates three strikes,
he will not be permitted to proceed IFP in any civil action or appeal filed while
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
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