     Case: 11-50470     Document: 00511620134         Page: 1     Date Filed: 10/03/2011




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

                                                                            FILED
                                                                          October 3, 2011

                                     No. 11-50470                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



EDWARD DESHAN SMITH

                                                  Plaintiff - Appellant
v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Correctional Institution;
T. LESTER, Warden; SERGEANT TURNER; SERGEANT DAVIS; OFFICER
KNIGHTEN,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:11-CV-128


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Edward Deshan Smith appeals the district court’s dismissal of his
complaint, with prejudice, as time-barred.                 In his complaint, filed on
February 16, 2011, Smith alleged that on May 21, 2004, and on December 22,
2005, while he was incarcerated, prison officials used excessive force against
him. The magistrate judge construed Smith’s complaint as one alleging a cause

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-50470   Document: 00511620134     Page: 2   Date Filed: 10/03/2011



                                 No. 11-50470

of action under 42 U.S.C. § 1983, and recommended that it be dismissed for
failure to state a claim upon which relief could be granted because Smith’s
claims are barred by the statute of limitations. See Owens v. Okure, 488 U.S.
235, 249–50 (1989) (“where 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”); Moore v. McDonald, 30
F.3d 616, 620 (5th Cir. 1994) (“Texas’ general personal injury limitations period
is two years.”) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a)). The
district court overruled Smith’s objections to the magistrate judge’s report and
accepted the magistrate judge’s recommendation to dismiss the complaint with
prejudice as time-barred.
      In his pro se brief, which we construe liberally, Smith seems to contend
that a four- or five-year statute of limitations should apply to his claims. Even
if we accepted this contention, it would not help Smith, because he filed his
complaint more than five years after the complained-of conduct.
      The judgment of the district court is AFFIRMED. Smith’s motion for
appointment of counsel is DENIED.
                                              AFFIRMED; MOTION DENIED.




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