     Case: 09-10298     Document: 00511042755          Page: 1    Date Filed: 03/05/2010




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

                                                  FILED
                                                                            March 5, 2010
                                     No. 09-10298
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

ALLEN DEWAYNE BATES,

                                                   Plaintiff-Appellant

v.

ZANE PRICE, Patrol Officer; RANDY BAKER, Supervisor; JIM MCCASLIN,
Chief of Police; THE CITY OF TULIA,

                                                   Defendants-Appellees


                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:08-CV-240



Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
        Allen Dewayne Bates, Texas prisoner # 24958, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint as frivolous because it was barred
by the statute of limitations. Bates argues, as he did in the district court, that
the defendants violated his Fourth Amendment rights when he was arrested on
September 21, 2006. Bates also contends that his cause of action did not accrue



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10298      Document: 00511042755 Page: 2       Date Filed: 03/05/2010
                                   No. 09-10298

until February 1, 2008, the date on which he was arrested on charges related to
the September 21, 2006 arrest.
      This court reviews a 28 U.S.C. § 1915 dismissal as frivolous for an abuse
of discretion. 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). Texas has a two-year limitations period for personal injury
actions. T EX. C IV. P RAC. AND R EM. C ODE A NN. § 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).
      Thus, the two-year limitations period began to run on September 21, 2006,
the date on which Bates knew of the alleged injury. See Piotrowski, 51 F.3d at
516. Because Bates did not sign his § 1983 complaint until December 18, 2008,
his claims are barred by the statute of limitations. Bates’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 as frivolous. See 5 TH C IR. R. 42.2.
      The dismissal of this appeal and the district court’s dismissal as frivolous
count as two strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996). Bates has two previous strikes. See Bates
v. Hill, No. 5:07-CV-00263 (N.D. Tex. Mar. 13, 2008); Bates v. Hill, No. 5:07-CV-
00128-C (N.D. Tex. Aug. 13, 2007). Because Bates has now accumulated three
strikes, he is barred from proceeding in forma pauperis in any civil action or
appeal filed while he is incarcerated or detained in any facility unless he is
under imminent of serious physical injury. See § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.

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