     Case: 10-41208     Document: 00511567420         Page: 1     Date Filed: 08/10/2011




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

                                                                            FILED
                                                                          August 10, 2011
                                     No. 10-41208
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ARTHUR POULOS,

                                                  Plaintiff-Appellant

v.

JANE JONES,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:10-CV-449


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Arthur Poulos, Texas prisoner # 748344, appeals the 28 U.S.C. § 1915A
dismissal of his 42 U.S.C. § 1983 complaint as frivolous because it was barred
by the applicable statute of limitations. In his complaint, he alleged that on
February 28, 2005, he sent a motion for DNA testing to Jane Jones, the County
Clerk of Delta County, who failed to file it.
        Generally, we review § 1915A dismissals as frivolous for an abuse of
discretion. Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). However, because

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41208    Document: 00511567420       Page: 2    Date Filed: 08/10/2011

                                   No. 10-41208

Poulos failed to file objections to the magistrate judge’s report, review is for plain
error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir.
1996) (en banc). To show plain error, Poulos must show a forfeited error that is
clear or obvious and that affects his substantial rights. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, this court has
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
      Because there is no federal statute of limitations for actions brought
pursuant to § 1983, federal courts borrow the forum state’s general personal
injury limitations period. Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens v.
Okure, 488 U.S. 235, 249-50 (1989). Texas has a two-year limitations period for
personal injury actions. TEX. CIV. PRAC.       AND   REM. CODE ANN. § 16.003(a).
Nevertheless, federal law determines when a § 1983 cause of action accrues.
Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993). A cause of action under
§ 1983 accrues when the aggrieved party knows, or has reason to know of, the
injury or damages which form the basis of the action. Piotrowski v. City of
Houston, 51 F.3d 512, 516 (5th Cir. 1995).
      Poulos’s claim accrued no later than February 28, 2005, the date he
alleged he sent the motion for DNA testing to Jones. He complained of no other
event which could serve as a trigger date for the running of the limitations
period. Accordingly, the limitations period expired on February 28, 2007, more
than three and half years before Poulos filed his complaint on September 7,
2010. See Piotrowski, 51 F.3d at 516. Although Poulos now contends that he
sent other motions for DNA testing on October 24, 2008, and filed a motion for
a writ of mandamus on December 1, 2008, seeking to have the state court
answer his habeas application, these assertions are raised for the first time on
appeal and will not be considered. See Stewart Glass & Mirror, Inc. v. U.S. Auto
Glass Discount Centers, Inc., 200 F.3d 307, 316-17 (5th Cir. 2000).



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                                  No. 10-41208

      Poulos’s appeal is without arguable merit and, thus, frivolous.         See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Therefore, it is dismissed.
See 5TH CIR. R. 42.2. The dismissal of this appeal and the district court’s
dismissal as frivolous count as two strikes under § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Poulos is cautioned 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).
      APPEAL DISMISSED; SANCTION WARNING ISSUED.




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