                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 16, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 02-31123
                         Summary Calendar



TERRY D. TILMON,

                                    Plaintiff-Appellant,

versus

STEVE PRATOR; JOHN SELLS; MCCREARY, Sergeant; RANDAL TERRELL,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                        USDC No. 02-CV-1087
                       --------------------

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Terry D. Tilmon, # 33778-125947, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 action as frivolous and

for failure to state a claim upon which relief may be granted

under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).   Tilmon argues that

the district court erred in applying Sandin v. Connor, 515 U.S.

472 (1995) because as an unsentenced prisoner, he had a liberty

interest under the Due Process Clause in not being punished


     *
        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that this opinion should not be published and is not precedent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.
                           No. 02-31123
                                -2-

absent a hearing.   Tilmon filed objections in the district court

in which he argued that as an unsentenced prisoner, his status

was like that of a pretrial detainee and that Sandin v. Connor

did not apply to him.   He cited Fuentes v. Wagner, 206 F.3d 335,

341-42 and n.9 (3rd Cir. 2000), in which that court held that a

convicted inmate awaiting sentencing has the status of a pretrial

detainee and thus, that Sandin does not apply.     He also cited

Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000), in which

that court held that a convicted but unsentenced prisoner should

be treated as a sentenced inmate for purposes of analyzing

whether he had a liberty interest in being free from punitive

segregation, concluding that Sandin applied.     The district court

stated that it had considered Tilmon’s objections, but the court

did not specifically address or engage in a discussion of

Tilmon’s objection concerning the application of Sandin.

     This court notes that Tilmon’s complaint was filed more than

one year after the alleged violation.     Tilmon alleged that the

due process violation occurred on April 9-11, 2001, and he did

not file his complaint until May 20, 2002.     Louisiana has a one-

year prescriptive period for torts.   La. Civ. Code Ann. art. 3492

(West 1994).   This one-year period is the borrowed statute of

limitations for 42 U.S.C. § 1983 actions in Louisiana.     Elzy v.

Roberson, 868 F.2d 793, 794 (5th Cir. 1989).     This court cannot

sua sponte hold that Tilmon’s action is time-barred without his

having had an opportunity to explain why the time bar may not
                             No. 02-31123
                                  -3-

apply.   See Scott v. Johnson, 227 F.3d 260, 262-63 (5th Cir.

2000).   Therefore, the district court’s judgment is VACATED,

based on the district court’s failure to specifically address

Tilmon’s objections, and this case is REMANDED for the district

court to consider his objections, and to give Tilmon the

opportunity to address, and for the district court to consider,

whether Tilmon’s action is time-barred.

     VACATED AND REMANDED.
