     Case: 13-50535      Document: 00512463307         Page: 1    Date Filed: 12/06/2013




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

                                                                                 FILED
                                      No. 13-50535                        December 6, 2013
                                                                            Lyle W. Cayce
CARLOS C. HERNANDEZ,                                                             Clerk


                                                 Plaintiff-Appellant

v.

KENNETHA TISDALE, Board of Pardons and Paroles, also known as Kenneth
Tisdale; PAROLE DIVISION REPRESENTATIVE, Buza; JOHNNY RERES,
Program Specialist I; RISSIE OWENS, Board of Pardons and Paroles, also
known as Riggie Owens,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:13-CV-89


Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
       Carlos C. Hernandez, Texas prisoner # 1747746, moves to proceed in
forma pauperis (IFP) to appeal the dismissal as frivolous of his 42 U.S.C. § 1983
complaint. The district court dismissed the suit as frivolous pursuant to 28
U.S.C. § 1915(e) on the basis that the complaint was time barred. The district
court certified that the appeal had not been taken in good faith and denied


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Hernandez permission to proceed IFP. Hernandez argues that the limitations
period was tolled pursuant to the continuing tort doctrine.
       By moving to proceed IFP, Hernandez is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s good faith
“is limited to whether the appeal involves legal points arguable on their merits
(and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983) (internal quotation marks and citation omitted). We may dismiss the
appeal if it is frivolous. See Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2.
       “[W]here it is clear from the face of a complaint filed in forma pauperis
that the claims asserted are barred by the applicable statute of limitations
those claims are properly dismissed” as frivolous. Gartrell v. Gaylor, 981 F.2d
254, 256 (5th Cir. 1993). Review of the dismissal is for an abuse of discretion.
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. 1 Owens v. Okure, 488 U.S. 235, 249-50 (1989); Price
v. City of San Antonio, 431 F.3d 890, 892 (5th Cir. 2005). In Texas, the
applicable imitations period is two years.              See Price, 431 F.3d at 892.
Hernandez’s contention that the Texas Legislature amended the limitations
period to three years is baseless. See TEX. CIV. PRAC. AND REM. CODE ANN.
§ 16.003(a).
       Although Texas law governs the length of the limitations period and the
tolling exceptions, federal law governs the issue when a cause of action accrues.
Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989). A cause of action under

       1 We borrow the forum state’s statute of limitations unless the cause of action was
“made possible by a post-1990 [Congressional] enactment,” in which case the 4-year, residual
limitations period of 28 U.S.C. § 1658 would apply. Jones v. R.R. Donnelley & Sons Co., 541
U.S. 369, 382 (2004). As no claim is raised here that would invoke that exception, Texas’s
limitations period applies.


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§ 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). “A plaintiff need not realize that a
legal cause of action exists; a plaintiff need only know the facts that would
support a claim.” Id.
      In cases involving a continuing tort, the tortious conduct continues to
effect additional injury to the plaintiff until that conduct ceases.          Gen.
Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 451 (2007). In such cases, the
cause of action does not accrue until the wrongful conduct has stopped. Id.
Hernandez’s civil rights claims dealt with facts surrounding his 2009 release
to parole, with his alleged injuries stemming from the failure of the defendants
to release him outright without conditions on December 1, 2009, and the
mandatory registration and counseling requirements imposed on him as a sex
offender. Hernandez has simply not pleaded facts showing that the alleged
wrongful conduct was continuing or that the alleged wrong continued to effect
additional injury. See Gen. Universal Sys., Inc., 500 F.3d at 451. Hernandez
does not otherwise dispute the district court’s finding that his cause of action
accrued in December 2009; therefore, he has shown no abuse of discretion in
its dismissal of his November 2012 complaint as time barred.
      Hernandez’s appeal lacks arguable merit and is therefore frivolous.
See Howard, 707 F.2d at 220. Accordingly, his motion for leave to proceed
IFP on appeal is denied, and his appeal is dismissed as frivolous. See Baugh,
117 F.3d at 202 n.24; 5TH CIR. R. 42.2.         The district court’s dismissal of
Hernandez’s § 1983 complaint as frivolous counts as a strike for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). The dismissal of this appeal as frivolous also counts as a strike. See id.
Hernandez is warned that if he accumulates three strikes, he will not be able



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to proceed IFP 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).
      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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