     Case: 16-30315          Document: 00513985213      Page: 1    Date Filed: 05/09/2017




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                       No. 16-30315                                 FILED
                                     Summary Calendar                            May 9, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
DAVID A. ABSTON,

                                                   Plaintiff-Appellant

v.

FEDERAL BUREAU OF PRISONS; FEDERAL CORRECTIONAL
INSTITUTION OAKDALE; C. MARIANO; KERSTIN DUCOTE; JARRYD
MAYEAUX; ELIZABETH PERKINS; CAROL AUTIN; KENNETH RUSSELL;
PATRICIA BRADFORD; R. CATORIE; UNNAMED S H U STAFF;
MARCATEL; J. BANEY; LIEUTENANT DEVILLE; MOORE; SONNIER,

                                                   Defendants-Appellees


                       Appeal from the United States District Court
                          for the Western District of Louisiana
                                 USDC No. 2:15-CV-2386


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
          David A. Abston, federal prisoner # 10069-062, proceeding in forma
pauperis (IFP), filed this Bivens 1 action alleging events that occurred during



         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.

          1   Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
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                                  No. 16-30315

his incarceration at FCI-Oakdale in Oakdale, Louisiana. Abston named the
Federal Bureau of Prisons and over a dozen individuals or entities as
defendants, alleging that they violated his constitutional rights by failing to
protect him from attack by other inmates and by delaying and denying him
medical care for his resulting injuries. The district court dismissed Abston’s
complaint with prejudice as barred by the statute of limitations and as
frivolous as a matter of law under 28 U.S.C. § 1915(e)(2)(B)(i) and
§ 1915A(b)(1).
      “[W]here 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,
those claims are properly dismissed” as frivolous. Gartrell v. Gaylor, 981 F.2d
254, 256 (5th Cir. 1993). Courts may raise the defense of limitations sua sponte
in a § 1915 action.    Id.   Although a dismissal under § 1915(e)(2)(B)(i) as
frivolous is ordinarily reviewed for abuse of discretion, because the district
court cited § 1915A and § 1915(e)(2)(B)(i), our review is de novo. See Geiger v.
Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
      Abston argues that the district court erred in dismissing his complaint
as time barred. He contends that because he continues to receive medical
treatment, he is still not aware of the extent of his injuries and that the time
for filing his lawsuit is tolled. He asserts that he has one year from the
completion of his care to file his lawsuit.
      Abston knew of his injury at the time it occurred, and he knew of the
connection between the alleged injury and the defendants’ conduct. A claim
accrues when a plaintiff has knowledge of injury, not when the plaintiff has
knowledge of the nature and extent of damages. Gartrell, 981 F.2d at 257.
Abston’s argument that his claim has not yet accrued because he is still
receiving medical care and may not yet know the full extent of his injuries is



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                                  No. 16-30315

without merit. The district court did not err in dismissing his complaint as
frivolous based on the statute of limitations. See Geiger, 404 F.3d at 373;
Gartrell, 981 F.2d at 256.
      Abston’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. R. 42.2. Abston is informed that the dismissal of
this appeal as frivolous and the district court’s dismissal count as strikes for
purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Abston is warned that once he accumulates three strikes, he may
not proceed IFP 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).
      APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.




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