     Case: 09-30631     Document: 00511177880          Page: 1    Date Filed: 07/19/2010




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

                                                 FILED
                                                                            July 19, 2010
                                     No. 09-30631
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

WALTER EDWARD JOHNSON, JR.,

                                                   Plaintiff-Appellant

v.

JOE LAMARTINIERE, Assistant Warden, Louisiana State Penitentiary; J
BOLDEN, Master Sergeant, Louisiana State Penitentiary; K DAVIS, Master
Sergeant, Louisiana State Penitentiary,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                              USDC No. 3:09-CV-176


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        Walter Edward Johnson, Jr., Louisiana prisoner # 104558, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous. The
district court found that Johnson’s complaint was barred by the Louisiana one-
year prescriptive period, or statute of limitations. Johnson argues that the
district court erred in making this determination because his current complaint



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-30631

should relate back, pursuant to F ED. R. C IV. P. 15(c), to the April 2008 filing of
a different complaint that was dismissed in July 2008 for lack of subject matter
jurisdiction.   Johnson does not contest that the events giving rise to his
complaint occurred on May 25, 2007, or that he filed the instant complaint on
March 21, 2009, which is outside of the prescriptive period established by
Louisiana law.
      The appellees argue that plain error review is applicable because Johnson
failed to file objections to the magistrate judge’s report. Although Johnson did
not file objections to the report, he filed an amended complaint wherein he
argued that the instant complaint should be considered timely filed because it
related back to the complaint filed in April 2008. The district court considered
Johnson’s amended complaint before dismissing it as frivolous. Thus, review is
not limited to plain error. See Morin v. Moore, 309 F.3d 316, 320 (5th Cir. 2002).
Rather, this court will review the district court’s dismissal for abuse of
discretion. See Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).
      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). Louisiana Civil Code article 3492’s one-year
prescriptive period applies to Johnson’s § 1983 action. See Elzy v. Roberson, 868
F.2d 793, 794-95 (5th Cir. 1989).
      Under Louisiana law, the filing of a lawsuit “in a competent court and in
the proper venue” interrupts prescription as long as the suit is pending. L A. C IV.
C ODE A NN. art. 3463. If prescription is interrupted, the time that has run is not
counted and prescription starts over from the last day of interruption. L A. C IV.
C ODE A NN. art. 3466. However, if suit is filed in a court lacking jurisdiction or
proper venue, prescription is not interrupted unless the defendant is served
within the prescriptive period. See L A. C IV. C ODE A NN. art. 3462; Washington v.
Breaux, 782 F.2d 553, 554-55 (5th Cir. 1986); Breavx v. Vicknair, 507 So. 2d

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                                No. 09-30631

1242, 1243 (La. 1987); LaFargue v. St. Amant, 433 So. 2d 1061, 1062-63 (La.
App. 1983).
      Johnson’s 2008 complaint was dismissed for lack of subject matter
jurisdiction, and the defendants were not served. Thus, prescription was not
interrupted by the April 2008 filing of the prior complaint. See L A. C IV. C ODE
A NN. art. 3462; Washington, 782 F.2d at 554-55. Moreover, the 2008 judgment
is not subject to attack in this case. See Darlak v. Bobear, 814 F.2d 1055, 1064
(5th Cir. 1987).
      Johnson’s argument that the instant complaint relates back to a complaint
which was filed in April 2008 and dismissed in July 2008 is unavailing. F ED.
R. C IV. P. 15(c) allows for an amendment to a current pleading to relate back to
the date of the filing of the original, pending pleading. It does not contemplate
a subsequent complaint to relate back to a prior complaint that has been
dismissed. See F ED. R. C IV. P. 15(c). Johnson provides no legal support for his
argument in this regard. The district court’s judgment did not constitute an
abuse of discretion. See Norton, 122 F.3d at 291.
      Accordingly, the judgment of the district court is AFFIRMED. Johnson’s
motions for appointment of counsel are DENIED.




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