     Case: 10-20385 Document: 00511367770 Page: 1 Date Filed: 02/01/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 1, 2011
                                     No. 10-20385
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JAMES MARTIN CABEEN, also known as Robert Buckley

                                                   Plaintiff - Appellant

v.

TOMMY THOMAS, Sheriff Harris County Sheriff’s Department; BERRY, Major;
J. ALBERS, Captain; DEWEY, Lieutenant; LYKES, Sergeant; CHONG, Deputy;
TREPEAND, Deputy; COLLINS, Deputy or D.O.; TEMPLE, D.O.; RESPEVD,
D.O.; DR. ALICE BUENCAMINO, DR. HO, Harris County, Jail Medical Unit
Clinic, DR. SEALE; DONNA PARKER; WHITE MALE UNKNOWN, D.O.;
HISPANIC MALE NAME UNKNOWN, D.O.,

                                                   Defendants - Appellees


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:08-CV-1667


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Proceeding pro se and in forma pauperis, James Martin Cabeen, Texas
prisoner # 664808, sued pursuant to 42 U.S.C. § 1983, maintaining: jail or
prison officials were deliberately indifferent to his medical needs, used excessive



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-20385 Document: 00511367770 Page: 2 Date Filed: 02/01/2011

                                   No. 10-20385

force, provided inadequate supervision, and failed to train staff; and, the jail was
overcrowded, unsanitary, understaffed, and lacked access to medical care.
      This action was filed on 27 May 2008. Cabeen first contends the district
court erred by dismissing his claims predating 27 May 2006, as time barred,
because he was entitled to equitable tolling while hospitalized from 8 February
2007 until 14 April 2008.
      The dismissal of Cabeen’s action, pursuant to both 28 U.S.C.
§ 1915(e)(2)(B)(i) and (ii), is reviewed de novo. See 28 U.S.C. § 1915(e)(2)(B)(i),
(ii); Moore v. Carwell, 168 F.3d 234, 236 (5th Cir. 1999) (reviewing dismissals
under § 1915(i) and (ii) de novo, the same standard used to review dismissal
under Federal Rule of Civil Procedure 12(b)(6)). In a § 1983 action, applied are
the forum state’s personal-injury limitations period, Jacobsen v. Osborne, 133
F.3d 315, 319 (5th Cir. 1998), as well as its equitable-tolling provisions, Walker
v. Epps, 550 F.3d 407, 415 (5th Cir. 2008). In Texas, the personal-injury period
is two years; that period is tolled for legally disabled individuals who, at the time
the action accrues, are of “unsound mind” or “younger than 18 years of age”.
T EX. C IV. P RAC. & R EM. C ODE A NN. §§ 16.003(a), 16.001(a),(b).
      In regard to tolling, Cabeen asserts he was medically incapacitated during
his hospitalization, not mentally incapacitated or of unsound mind. Even if
Cabeen could show he was of unsound mind during his hospitalization, his
disability arose after the limitations period accrued, and does not toll the period
for claims predating 27 May 2006. See id. at § 16.001(d). Cabeen has failed to
produce Texas authority applying tolling principles in his circumstances. E.g.,
Wallace v. Kato, 549 U.S. 384, 394 (2007) (forgoing discussion of state tolling
principles in § 1983 action where prisoner failed to bring to court’s attention
similar state cases in which equitable tolling had been applied); cf. Rotella v.
Pederson, 144 F.3d 892, 897 (5th Cir. 1998) (applying Texas equitable tolling
principles in § 1983 action brought by Texas prisoner). Because the complaint



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                                   No. 10-20385

was filed on 27 May 2008, and the limitations period was not tolled, the court did
not err in determining Cabeen’s claims predating 27 May 2006 were time barred.
      The court also did not err in dismissing Cabeen’s following, non-time-
barred claims.    Along that line, he contends jail officials were deliberately
indifferent to his medical needs by not taking him to his neurological
appointments. To establish deliberate indifference in the Eighth Amendment
context, an inmate must show defendants: were aware of facts from which an
inference of an excessive risk to an inmate’s health or safety could be drawn;
and, made such inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Accordingly, a jail official acts with deliberate indifference “only if he knows that
inmates face a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it”. Id. at 847. Cabeen fails to
allege his eyesight deteriorated because of missed appointments and, therefore,
has not shown these appointments constituted a “substantial risk of serious
harm”. Id.
      Cabeen also contends he suffered a seizure due to contraindicated
medications. He does not assert, however, defendants knew it was inadvisable
for him to take the medications. Accordingly, he has failed to show defendants
were aware the medications posed a risk to his health and safety. See id. at 837.
      In addition, Cabeen maintains jail officials verbally harassed him;
however, verbal abuse, threatening language, and gestures do not constitute a
constitutional violation. See Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir.
1993). Similarly, Cabeen’s assertion that he was strip searched by a jail official
is unavailing because he does not claim a constitutional violation.
      AFFIRMED.




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