                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        September 2, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                            No. 03-10163
                          Summary Calendar



JOSE LOPEZ-VENCES,

                                    Plaintiff-Appellant,

versus

RALPH J. PAYNE, Warden; JOHN DOE,
Captain, FCI Big Springs, TX; JOHN DOE,
Lieutenant, FCI Big Springs, TX; T. D.
GILBREATH; A. B. MIRELES; T. STILLER;
D. DANIELS,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                       USDC No. 1:02-CV-73
                      --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jose Lopez-Vences, federal prisoner #54689-080, appeals the

sua sponte dismissal by the district court of his claims brought

pursuant to Bivens v. Six Unknown Named Agents,403 U.S. 388

(1971), as time-barred.   He does not challenge the district

court’s finding that, to the extent his claims were brought under


     *
        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that this opinion should not be published and is not precedent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. 03-10163
                                   -2-

the Federal Tort Claims Act, they were time-barred.      Accordingly,

this argument had been abandoned.      See Yohey v. Collins, 985 F.2d

222, 224-25 (5th Cir. 1993).

     Lopez argues the district court erred in raising the

limitations issue sua sponte; the limitations period for his

claim regarding his administrative segregation claim did not

begin to run until he was released from segregation on December

2, 1999; and, for various reasons, the limitations period should

be equitably tolled.      We do not consider arguments raised for the

first time in Lopez’s reply brief which are not responsive to the

appellee’s brief.      See Cousin v. Trans Union Corp., 246 F.3d 359,

373 n.22 (5th Cir. 2001); Price v. Roark, 256 F.3d 364, 368 n.2

(5th Cir. 2001).

     The district court may sua sponte raise the limitations

defense in a suit filed in forma pauperis under 28 U.S.C. § 1915.

Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993).        A

district court’s dismissal of an IFP suit based on limitations is

reviewed for abuse of discretion.      Gartrell, 981 F.2d at 256.

     There is no federal statute of limitations.      Gartrell, 981

F.2d at 256.      Accordingly, the forum state’s statute of

limitations for general personal injuries is used in Bivens

claims.   Id.     In Texas, the appropriate statute of limitations is

two years.      See Gartrell, 981 F.2d at 256; see also TEX. CIV.

PRAC. & REM. CODE ANN. § 16.003(a).   As a corollary to this rule,

state tolling provisions are also used in Bivens cases.
                             No. 03-10163
                                  -3-

Gartrell, 981 F.2d at 257.    Federal law, however, is used to

determine when a cause of action accrues.     Id.    A civil rights

cause of action accrues when the plaintiff knows or has reason to

know of the injury that is at the heart of his action.       Id.

     Lopez’s claim that Mireless used excessive force in shooting

him was known to him on June 22, 1999, the day he was shot.        His

claim that he was placed in administrative segregation without

due process was known to him when he was placed in segregation on

June 25, 1999.    Lopez executed his Bivens complaint on March 25,

2002, more than two years after his claims had accrued.

     The limitations period for Lopez’s administrative

segregation claim did not begin to run when he was released from

segregation.     See Gartrell, 981 F.2d at 256-57.   Moreover, the

limitations period could not have been tolled while Lopez’s

request for a administrative remedy was pending as his request

was submitted after the applicable statute of limitations

expired.   See id. at 256.   Finally, equitable tolling of the

limitations period is not warranted as Lopez did not diligently

pursue his rights.     See See Rotella v. Pederson, 144 F.3d 892,

894 (5th Cir. 1998); Holmes v. Texas A&M Univ., 145 F.3d 681, 684

(5th Cir. 1998); Hand v. Stevens Transport, Inc. Employee Benefit

Plan, 83 S.W.3d 286, 293 (Tex. App. 2002).

     Lopez’s appeal is without arguable merit and is frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED.       See 5TH CIR.
                           No. 03-10163
                                -4-

R. 42.2.   The dismissal of this appeal as frivolous counts as one

“strike” for purposes of 28 U.S.C. § 1915(g).    See Adepegba v.

Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).    We caution Lopez

that once he accumulates three strikes, he may not 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 28 U.S.C.

§ 1915(g).

     APPEAL DISMISSED; SANCTIONS WARNING ISSUED.
