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

                                                 FILED
                                                                        September 24, 2009

                                     No. 09-30076                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



HENRY JAMES

                                                   Plaintiff - Appellant
v.

SERGEANT RICHARDSON; R DARIN DAVIS; JOHNNY R SMITH;
ROBERT Y HENDERSON; LINDA RAMSAY; RICHARD STALDER;
MASTER SERGEANT POUSSON; D GENE WILSON; BRYAN WILSON;
JOANN PESHOFF; MASTER SERGEANT BENNETT; DENNIS CLOUD;
SERGEANT CHAPELL; JIM ROGERS

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                 No. 2:08-CV-646


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Former inmate Henry James appeals the dismissal of his 42 U.S.C. § 1983
lawsuit as barred by expiration of the applicable prescriptive period under
Louisiana law. During the appeal, James filed a Motion for Leave to File a



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30076

Supplemental Brief. We grant that motion and consider the arguments raised
in the supplemental brief. For the reasons that follow, we affirm the dismissal
of James’s complaint.
         James was an inmate of the Louisiana Department of Corrections until
May 18, 2007.       During his incarceration, he filed at least four frivolous
complaints in forma pauperis (IFP), bringing him within the three strikes
penalty of 28 U.S.C. § 1915(g). Pursuant to that penalty, James is precluded
from proceeding IFP “while incarcerated or detained in any facility . . . unless
[he] is under imminent danger of serious physical injury.” Id.; see Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). He was first denied IFP status
under § 1915(g) in a civil rights claim filed in 1999.
         James filed this complaint against the Appellees on May 9, 2008, nearly
one year after his release from prison.      The complaint alleges civil rights
violations occurring from 2003 up to November 7, 2005, the date when James
received an adverse ruling at a prison disciplinary hearing. His appeal of that
ruling was finally denied by prison officials on March 1, 2006. The district court
granted James permission to proceed IFP, but it subsequently denied his motion
under § 1915(d) for service of process on Appellees and dismissed the complaint
sua sponte, finding it frivolous under § 1915(e)(2)(B). The court concluded that
Louisiana’s one-year prescriptive period for James’s causes of action had ended,
at the latest, on March 1, 2007, over one year before the complaint had been
filed.   James now appeals, arguing that his inability to proceed IFP while
incarcerated caused his claims to be tolled from the time of their accrual to the
date of his release from prison.
         We review the district court’s dismissal for abuse of discretion.    See
Gonzales v. Wyatt, 157 F.3d 1016, 1019–20 (5th Cir. 1998). Section 1915(e)(2)(B)
requires dismissal of frivolous IFP actions even if those actions are brought by
non-prisoner plaintiffs. See Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir.

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2002). “[A] complaint . . . is frivolous where it lacks an arguable basis either in
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “District courts
may dismiss claims . . . where ‘it is clear from the face of a complaint filed in
forma pauperis that the claims asserted are barred by the applicable statute of
limitations.’” Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (quoting
Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993) (per curiam)). For actions
brought under § 1983, federal courts look to the forum state’s limitations period
for personal injury suits. Rodriguez v. Holmes, 963 F.2d 799, 803 (5th Cir. 1992).
      Under Louisiana law, the applicable prescriptive period (the civil law
analogue to a common law limitations period) is one year. L A. C IV. C ODE A NN.
art. 3492; see Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir. 1989) (applying
article 3492 to § 1983 actions). A cause of action under § 1983 accrues when “the
plaintiff becomes aware that he has suffered an injury or has sufficient
information to know that he has been injured.” Helton v. Clements, 832 F.2d
332, 335 (5th Cir. 1987). Although federal courts applying state statutes of
limitations for civil rights actions by prisoners must give effect to statutes tolling
the limitations period on account of incarceration, Hardin v. Straub, 490 U.S.
536, 542–44 (1989), Louisiana has no such tolling statute, see Lambert v. Toups,
745 So. 2d 730, 733 (La. Ct. App. 1999) (citing Hampton v. Kroger Co., 658 So.
2d 209, 211 (La. Ct. App. 1995)).
      The district court did not abuse its discretion in finding James’s complaint
barred by the expiration of the one-year prescriptive period. The causes of action
asserted in James’s complaint were not tolled merely as a result of James being
a prisoner. Nor did the three strikes penalty of § 1915(d) prevent James from
filing a complaint in either federal or state court; it merely revoked James’s
privilege to proceed IFP and required him to pay the appropriate filing fees. See
Adepegba, 103 F.3d at 387 (“Prisoners who are not allowed to proceed i.f.p. may
pursue their substantive claims just as anyone else by paying the filing fee.”).

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James failed to do so; the prescriptive period for his current causes of action
accordingly expired before he filed the complaint on May 7, 2008. Because the
prescriptive period for James’s claims had expired before he filed his complaint,
the district court did not abuse its discretion in finding that the complaint lacked
an arguable basis either in law or in fact and dismissing it as frivolous.
      James’s Motion for Leave to File a Supplemental Brief is GRANTED. The
judgment of the district court is AFFIRMED.




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