     Case: 17-20250      Document: 00514372714         Page: 1    Date Filed: 03/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-20250
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          March 5, 2018
                                                                           Lyle W. Cayce
JAMES WENDELL WARREN,                                                           Clerk


                                                 Plaintiff-Appellant

v.

DOCTOR JOHN DOE; DOCTOR EARNESTINE JULYE, Individually & in her
Official Capacities,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-3631


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       James Wendell Warren, Texas prisoner # 1787787, appeals the district
court’s dismissal with prejudice of his 42 U.S.C. § 1983 complaint as frivolous
and for failure to state a claim pursuant to 28 U.S.C. § 1915A(b). We review
the district court’s dismissal de novo. See Geiger v. Jowers, 404 F.3d 371, 373
(5th Cir. 2005).



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-20250

      With the benefit of liberal construction, Warren asserts that the two-year
statute of limitations should not have been applied in his case because the
defendants’ conduct constituted a continuing tort. He admits, however, that
he was “immediately taken out of the textile factory after his first extreme
asthma attack [in 2012] and given a job that was compat[i]ble with his medical
problems.”    Accordingly, the continuing tort doctrine is inapplicable.       See
Lizotte v. Leblanc, 456 F. App’x 511, 512 (5th Cir. 2012) (citing Gartrell v.
Gaylor, 981 F.2d 254, 257 (5th Cir. 1993)). To the extent Warren asserts that
his second asthma attack in 2016 was preventable, and that Dr. Earnestine
Julye acted with deliberate indifference by failing to place him on work
restrictions following the first attack, the two-year statute of limitations would
not bar this claim, assuming Warren did not know or have reason to know of
that alleged failure until he was reassigned to the textile factory in 2016. See
Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989) (a cause of action accrues
“when the plaintiff knows or has reason to know of the injury which is the basis
of the action.”).
      But Warren fails to show that the district court erred in dismissing his
claims against Dr. Julye, because he has not alleged sufficient facts to support
a theory of individual or supervisory liability. See Roberts v. City of Shreveport,
397 F.3d 287, 292 (5th Cir. 2005); Thompson v. Upshur Cty., 245 F.3d 447,
458–59 (5th Cir. 2001). Finally, Warren has abandoned any challenge to the
district court’s dismissal of his claims against Drs. John Doe and Julye in their
official capacities. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987).
      While we do not go so far as to conclude that his complaint is frivolous,
Warren has not shown that the district court erred in dismissing his § 1983
complaint for failure to state a claim. See Morris v. McAllester, 702 F.3d 187,



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                                 No. 17-20250

189 (5th Cir. 2012); Geiger, 404 F.3d at 373. We caution Warren that the
dismissal of his complaint by the district court counts as a strike under 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
We further caution him 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 § 1915(g).
      AFFIRMED.




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