                                  United States Court of Appeals,

                                            Fifth Circuit.

                                           No. 91–7350.

                                        Summary Calendar.

                               Laura HICKEY, Plaintiff–Appellant,

                                                  v.

         IRVING INDEPENDENT SCHOOL DISTRICT, et al. Defendants–Appellees.

                                           Nov. 11, 1992.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

       EMILIO M. GARZA, Circuit Judge:

       Plaintiff, Laura Hickey, sued the Irving Independent School District and several of its

individual members (hereafter collectively "IISD"), alleging that IISD failed to accommodate her

medical disability, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and tortiously

exposed her to harmful substances, all while she was a student at Irving High School. The district

court dismissed Hickey's complaint on the grounds that it was barred by the statute of limitations.

Hickey contends that the district court erred in a) dismissing her claim as time-barred; b) dismissing

her claim for lack of diversity; c) dismissing her claim under Fed.R.Civ.P. 12(b)(6); and d) referring

her case to a magistrate without her consent. Because the district court erred in dismissing Hickey's

complaint as time-barred, we reverse and remand.

                                                  I

        Hickey's complaint1 and motion to proceed in forma pauperis were received in the district

court on September 9, 1991.          See Record on Appeal at 7 (Findings, Conclusions and

   1
    Hickey alleges that she attended Irving High School during the academic years 1986–87 and
1988–89, and that during that time she was disabled due to formaldehyde sensitization, a medical
condition which made it impossible for her to tolerate substances containing formaldehyde, such
as smoke, paint, and pesticides. Hickey claims that IISD failed to provide her with a learning
environment which accommodated her disability, in violation of the Rehabilitation Act of 1973, 29
U.S.C. § 794 (1988). Hickey further maintains that IISD negligently and/or willfully injured her
by exposing her to harmful chemicals.
Recommendation of the United States Magistrate Judge). The district court granted Hickey's motion

to proceed in forma pauperis and referred her case to a United States magistrate. In her Findings,

Conclusions and Recommendation, the magistrate found that 1) the limitations period applicable to

Hickey's state and federal claims was two years; 2) Hickey's claims were time-barred, since she had

last attended Irving High School during the academic year 1988–89—more than two years before the

district court received her complaint on September 9, 1991; and 3) because Hickey's claims were

time-barred, they lacked an arguable basis in law, and were subject to dismissal pursuant to 28 U.S.C.

§ 1915(d).2 The Magistrate did not mention the possibility of tolling the statute of limitations. See

Record on Appeal at 5–8. Hickey filed objections to the Magistrate's Findings, Conclusions and

Recommendation, in which she argued that she did not reach the age of eighteen years until

September 9, 1989, and that the statute of limitations should have been tolled until that date on

account of her minority. See id. at 10. The district court adopted the magistrate's Findings,

Conclusions and Recommendation and dismissed Hickey's complaint, without explicitly considering

the possibility of tolling. See id. at 15–16.

                                                    II

        Hickey argues that the district court erred in dismissing her claims as time-barred because

the statute of limitations was tolled until she turned eighteen. We review the district court's ruling

de novo. See Kennedy v. Electricians Pension Plan, IBEW # 995, 954 F.2d 1116, 1120 (5th

Cir.1992) (district court's ruling—that statute of limitations was inapplicable—reviewed de novo).

         The magistrate correctly concluded that the applicable statute of limitations was

Tex.Civ.Prac. & Rem.Code Ann. § 16.003(a) (Vernon 1986), which provides that "[a] person must

bring suit for ... personal injury ... not later than two years after the day the cause of action accrues."

By its terms, section 16.003(a) applies to Hickey's state law personal injury claims. Furthermore,

section 16.003(a) is the appropriate statute of limitations to use in connection with Hickey's claims


   2
     Where a plaintiff proceeds in forma pauperis, "[t]he court ... may dismiss the case if ...
satisfied that the action is frivolous...." 28 U.S.C. § 1915(d) (1988). A complaint is frivolous if it
"lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109
S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989).
under the Rehabilitation Act.

        The selection of a limitations period applicable to Rehabilitation Act cases is governed by 42

U.S.C. § 1988, which directs the court to 1) follow federal law if federal law provides a limitations

period; 2) apply the common law, as modified by state constitution or statute, if no limitations period

is provided by federal law; but 3) apply state law only if it is not inconsistent with the Constitution

and laws of the United States. See 42 U.S.C.A. § 1988(a) (West Supp.1992); Wilson v. Garcia, 471

U.S. 261, 267, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254 (1985) (describing three-step analysis provided

in 42 U.S.C. § 1988).

        Federal law does not provide a limitations period. The Rehabilitation Act provides that the

"remedies [and] procedures ... set forth in title VI of the Civil Rights Act of 1964" are available to

aggrieved persons proceeding under the Rehabilitation Act. See 29 U.S.C. § 794a(a)(2) (1988).

However, title VI of the Civil Rights Act of 1964 does not provide a limitations period. See 42

U.S.C. §§ 2000d to 2000d–4a. Furthermore, the general federal statute of limitations, 28 U.S.C. §

1658, does not apply to the Rehabilitation Act of 1973, since it applies only to statutes enacted after

December 1, 1990. See 28 U.S.C.A. § 1658 (West Supp.1992). Consequently, the district court was

called upon to apply a state statute of limitations.

        The district court was required to adopt, from the forum state, the statute of limitations

governing the state cause of action most closely analogous to Hickey's Rehabilitation Act claims. See

Goodman v. Lukens Steel Company, 482 U.S. 656, 660, 107 S.Ct. 2617, 2620, 96 L.Ed.2d 572

(1987) ("[F]ederal courts shoul d select the most appropriate or analogous state statute of

limitations."); Bd. of Regents of the Univ. of New York v. Tomanio, 446 U.S. 478, 483–84, 100 S.Ct.

1790, 1795, 64 L.Ed.2d 440 (1980) ("[T]his Court has repeatedly "borrowed' the state law of

limitations governing an analogous cause of action.").

        This Court has not yet decided which Texas statute of limitations governs claims under the

Rehabilitation Act. Texas law supplies several limitations periods, applicable to different types of
claims.3 Of the state law claims governed by the Texas statutes of limitations, we find that personal

injury claims are most nearly analogous to the discrimination claims authorized by the Rehabilitation

Act.4 As the Supreme Court has recognized, claims for discrimination are essentially claims for

personal injury. See Goodman, 482 U.S. at 661, 107 S.Ct. at 2621 (Actions pursuant to 42 U.S.C.

§ 1981, alleging racial discrimination, "are in essence claims for personal injury."); Wilson, 471 U.S.

at 280, 105 S.Ct. at 1949 (Claims under 42 U.S.C. § 1983, including those which allege

discrimination, "are best characterized as personal injury actions...."); see also Price v. Digital

Equipment Corp., 846 F.2d 1026, 1028 (5th Cir.1988) (Section 16.003(a) applies to suit alleging

racial discrimination under 42 U.S.C. § 1981); Cervantes v. IMCO, Halliburton Services, 724 F.2d

511, 514 (5th Cir.1984) (Section 16.003(a) applies to section 1981 action for discrimination on the

basis of national origin). Because we find personal injury claims to be most nearly analogous to

Hickey's claims for discrimination, section 16.003(a), governing personal injury claims,5 should be


   3
    Texas' one-year statute of limitations applies to suits for "malicious prosecution, libel, slander,
or breach of promise of marriage." See Tex.Civ.Prac. & Rem.Code Ann. § 16.002 (Vernon
1986).

               Texas also provides a two-year limitations period for claims alleging injury to the
       estate or to the property of another, conversion of personal property, taking or detaining
       the personal property of another, personal injury, forcible entry and detainer, forcible
       detainer, and wrongful death. See id. § 16.003.

               A four year limitations period is applicable to claims for specific performance of
       real estate sales contracts, and for claims arising from the bond of a personal
       representative, or from the dissolution of a partnership. See id. § 16.004.

               The Texas statute which prohibits discrimination against handicapped persons and
       creates a civil cause of action for the redress of such discrimination does not contain a
       limitations period. See Tex.Hum.Res.Code Ann. §§ 121.003, 121.004 (Vernon 1990).
   4
     The Rehabilitation Act provides that "[n]o otherwise qualified individual with handicaps in the
United States ... shall, solely by reason of her or his handicap, be excluded from the participation
in, be denied the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance or under any program or activity conducted by any
Executive agency or by the United States Postal Service." 29 U.S.C. § 794 (1988).
   5
    Unlike some states, Texas has only one statute of limitations for personal injury actions.
Consequently, we need not address the issues discussed in Owens v. Okure, 488 U.S. 235, 109
S.Ct. 573, 582, 102 L.Ed.2d 594 (1989) ("[W]here state law provides multiple statutes of
limitations for personal injury actions, courts considering § 1983 claims should borrow the general
or residual statute for personal injury actions.").
applied to Hickey's suit unless doing so would be inconsistent with federal law.

        Application of section 16.003(a) to Rehabilitation Act cases is not inconsistent with federal

law or the Constitution. The Supreme Court has observed that "[i]t is most unlikely that the period

of limitations applicable to [personal injury] claims ... ever was, or ever would be, fixed in a way that

would discriminate against federal claims, or be inconsistent with federal law in any respect." Wilson,

471 U.S. at 279, 105 S.Ct. at 1949. Furthermore, we note that other courts have applied two-year

statutes of limitations governing personal injury claims to suits under the Rehabilitation Act.6 None

of these courts has found any conflict with federal law. Because we perceive no antagonism between

federal law and the application of section 16.003(a), we hold that the magistrate correctly adopted

section 16.003(a) as the statute of limitations applicable to Hickey's Rehabilitation Act claim.7

        Nonetheless, the district court erred by dismissing Hickey's complaint without considering

the possibility of tolling the statute of limitations on acco unt of Hickey's minority. Hickey last

attended Irving High School during the academic year 1988–89, which would have ended in May or

June of 1989. Because t hat date preceded the district court's receipt of Hickey's complaint (on

September 9, 1991) by more than two years, the magistrate found Hickey's claims to be barred by the




   6
    See, e.g., Bush v. Commonwealth Edison Co., 732 F.Supp. 895, 900 (N.D.Ill.1990);
DiMedio v. Girard Bank, 1987 WL 9410 (E.D.Pa.1987), aff'd, 835 F.2d 282 (3rd Cir.1987).
Several courts have applied three-year personal injury statutes of limitations to Rehabilitation Act
claims. See, e.g., Morse v. Univ. of Vermont, 973 F.2d 122 (2nd Cir.1992), aff'g 776 F.Supp.
844, 850 (D.Vt.1991); Doe v. Southeastern Univ., 732 F.Supp. 7, 9 (D.D.C.1990), appeal
dismissed, 927 F.2d 1257 (D.C.Cir.1991); Wallace v. Town of Stratford Bd. of Educ., 674
F.Supp. 67, 71 (D.Conn.1986).
   7
     The Supreme Court has held that "[t]he federal interests in uniformity, certainty, and the
minimization of unnecessary litigation" require the selection of a single statute of limitations from
each state, to govern all actions under 42 U.S.C. § 1983. Wilson, 471 U.S. at 275, 105 S.Ct. at
1947. The Supreme Court has extended this holding to actions under 42 U.S.C. § 1981.
Goodman, 482 U.S. at 661, 107 S.Ct. at 2617, aff'g 777 F.2d 113 (3rd Cir.1985). Because the
federal interests noted in Wilson are no less pressing in the context of the Rehabilitation Act than
in the contexts of section 1981 and section 1983, the Texas personal injury statute of limitations,
section 16.003, should be applied uniformly to all claims under the 29 U.S.C. § 794. Cf. Morse at
4 ("The selection of one particular state statute of limitations applicable to all claims brought
under § 504 [of the Rehabilitation Act, 29 U.S.C. § 794,] provides that certainty and consistency
the lack of which was criticized in Wilson and Goodman.").
statute of limitations. However, Tex.Civ.Prac. & Rem.Code Ann. § 16.001 (Vernon 1986)8 provides

that the statute of limitations is tolled while the plaintiff is under the age of 18 years.9 Consequently,

the limitations period did not begin to run until Hickey turned 18, which she alleges to have occurred

on September 9, 1989.10 If that date was in fact Hickey's 18th birthday, her last day to file suit was

September 8, 1991.11 Since September 8, 1991 was a Sunday, Hickey had until Monday, September

9, 1991 to file her suit.12 The district court received Hickey's complaint on September 9, 1991.13

Therefore, if Hickey's 18th birthday actually was September 9, 1989, her claims were not barred by

the statute of limitations. The district court erred in dismissing Hickey's complaint without

considering the possibility that the statute of limitations was tolled on account of Hickey's minority.14

   8
     Where a state statute of limitations is borrowed, the state's rules for tolling the statute are
borrowed as well. See Tomanio, 446 U.S. at 485, 100 S.Ct. at 1795 (" "[B]orrowing' [of statutes
of limitations] logically include[s] rules of tolling...." (citing Johnson v. Railway Express Agency,
Inc., 421 U.S. 454, 463–64, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975)); see also Wilson, 471
U.S. at 269, 105 S.Ct. at 1943.
   9
    "[A] person is under a legal disability if the person is ... younger than 18 years of age.... If a
person entitled to bring a personal action is under a legal disability when the cause of action
accrues, the time of the disability is not included in a limitations period." Tex.Civ.Prac. &
Rem.Code Ann. § 16.001 (Vernon 1986).
   10
     Because the district court did not consider tolling the statute of limitations on the basis of
Hickey's minority, no finding of fact was made as to Hickey's age. See Record on Appeal at 5–8
(Findings, Conclusions and Recommendation of the United States Magistrate Judge).
   11
    See Trevino v. Castellow Chevrolet–Oldsmobile, Inc., 680 S.W.2d 71, 72–73
(Tex.App.—Corpus Christi 1984) (where four-year limitation period began to run on May 10,
1978, the last day to file suit was May 9, 1982), rev'd on other grounds, 690 S.W.2d 893
(Tex.1985).
   12
     "If the last day of a limitations period under any statute of limitations falls on a Saturday,
Sunday, or holiday, the period for filing suit is extended to include the next day that the county
offices are open for business." Tex.Civ.Prac. & Rem.Code Ann. § 16.072 (Vernon 1986).
   13
     Although the magistrate stated that Hickey's "claims ... were first received in [the district
court] on September 9, 1991," Record on Appeal at 7, the docket sheet shows that Hickey's
complaint was filed officially on September 16, 1991. See Record on Appeal, Civil Docket for
Case #: 91–CV–1911, at 2. However, "[r]eceipt of the complaint by the court clerk, rather than
formal filing, determines the time of filing." Martin v. Demma, 831 F.2d 69, 71 (5th Cir.1987)
(applying Louisiana statute of limitations applicable to personal injury cases in federal civil rights
action).
   14
        Hickey's other arguments require only brief discussion.

                  Hickey asserts that the district court erroneously dismissed her complaint for want
                                                III

       For the foregoing reasons, we REVERSE and REMAND for reconsideration of the timeliness

of Hickey's complaint.




       of subject matter jurisdiction, on account of lack of diversity. Although the magistrate
       noted that Hickey was "a former citizen of Texas," there is no indication that the district
       court's dismissal of Hickey's complaint was in any way premised on lack of jurisdiction.
       See Record on Appeal at 5–8 (Findings, Conclusions and Recommendation of the United
       States Magistrate Judge), 15–16 (Judgment and Order). This argument is therefore
       without merit.

               Hickey also contends that the district court erred in dismissing her complaint
       pursuant to Fed.R.Civ.P. 12(b)(6). While the district court's judgment stated that Hickey's
       complaint was "dismissed pursuant to Rule 12(b)(6)," see Record on Appeal at 16, we are
       convinced, after reviewing the record, that Rule 12(b)(6) actually was not the basis for
       dismissal. Rule 12(b)(6) deals with the dismissal of complaints for "failure to state a claim
       upon which relief can be granted." See Fed.R.Civ.P. 12(b)(6). Neither a Rule 12(b)(6)
       motion nor any pleading was filed by IISD, whereby IISD could have asserted that Hickey
       failed to state a claim upon which relief could be granted. Furthermore, the magistrate's
       Findings, Conclusions and Recommendation neither mentioned Rule 12(b)(6) nor
       suggested that Hickey had failed to state a claim. Consequently, it is clear that the district
       court dismissed Hickey's complaint entirely on the basis of 28 U.S.C. § 1915(d), and that
       the district court's reference to Rule 12(b)(6) was inadvertent.

               Lastly, Hickey argues that the district court erred by submitting her case to a
       magistrate without first obtaining her consent. We disagree. Hickey asserts that the
       magistrate proceeded under 28 U.S.C. § 636(c), which requires the consent of the parties.
       See 28 U.S.C. § 636(c) (1988). However, the magistrate did not exercise the powers
       conferred by § 636(c), such as ordering entry of judgment. See id. Furthermore, the
       magistrate explicitly stated that Hickey's case was referred to her pursuant to 28 U.S.C. §
       636(b), see Record on Appeal at 5, which does not require the consent of the parties. See
       28 U.S.C. § 636(b) (1988). Because the magistrate proceeded under § 636(b), and not §
       636(c), Hickey's consent was not required.
