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

                                                               FILED
                                                               May 7, 2008
                               No. 07-20190
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

JAMES HENRY ADUDDLE

                                         Plaintiff-Appellant

v.

TRUMAN BODY; TRACY TAYLOR; UN-NAMED OFFICERS; SUGARLAND
POLICE DEPARTMENT; JUDGE THOMAS R CULVER, III; FRED M
FELCMAN, District Attorney; GLORY HOPKINS, District Clerk; MITCHELL
ALBRIGHT, Deputy Clerk; MAGGIE PEREZ-JARAMILLO, Attorney at Law;
JUDGE OLEN UNDERWOOD; DETECTIVE SCOTT SOSA

                                         Defendants-Appellees


                Appeal from the United States District Court
                     for the Southern District of Texas
                          USDC No. 4:05-CV-3358


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
     James Henry Aduddle, Texas prisoner # 1191046, appeals from the district
court’s grant of summary judgment on his 42 U.S.C. § 1983 excessive force
claims based upon its finding that those claims are time barred. This court
reviews the grant of a motion for summary judgment de novo. Cousin v. Small,


     *
      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should not be published and is not precedent except under the limited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. 07-20190

325 F.3d 627, 637 (5th Cir. 2003).       Summary judgment is proper “if the
pleadings, discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). “[T]he party
moving for summary judgment must ‘demonstrate the absence of a genuine issue
of material fact,’ but need not negate the elements of the nonmovant’s case.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party meets the
initial burden of showing that there is no genuine issue, the burden shifts to the
nonmovant to set forth specific facts showing the existence of a genuine issue for
trial. Rule 56(e). The nonmovant cannot satisfy his summary judgment burden
with conclusional allegations, unsubstantiated assertions, or only a scintilla of
evidence. Little, 37 F.3d at 1075.
      There is no federal statute of limitations for §1983 actions. Federal courts
borrow the forum state’s general personal injury limitations period and
applicable tolling provisions. Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir.
1989). In Texas, the applicable period is two years. Tex. Civ. Prac. & Rem. Code
Ann. § 16.003(a); Burrell, 883 F.2d at 418. Although Texas law governs the
limitations period and the tolling exceptions, federal law governs when
Aduddle’s causes of action accrued. See Burrell, 883 F.2d at 418. Under federal
law, a cause of action accrues “when the plaintiff knows or has reason to know
of the injury which is the basis of the action.” Id. (internal quotations and
citations omitted). Aduddle concedes that his excessive force claims accrued no
later than July 24, 2002, when he was shot during the course of his arrest. He
did not file suit, however, until September 26, 2005, over three years later.
      Aduddle asserts that the statute of limitations should be tolled from the
date of the shooting until October 3, 2003 because he had no access to legal
authorities or assistance in the Fort Bend infirmary. Aduddle’s tolling argument
before the district court concerned only his claim that he was of unsound mind

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during the relevant period. Although this court does not generally review issues
that are raised for the first time appeal, the court may, in the interests of justice,
review an issue that was not raised in the district court in exceptional
circumstances. Kinash v. Callahan, 129 F.3d 736, 739 n.10 (5th Cir. 1997).
Such a review is “sharply circumscribed by the plain error standard.” Id.
Aduddle’s allegations involve factual questions that could have been resolved if
he had raised them in the district court. Thus, the error, if any, cannot have
been “plain.” Robertson v. Plano City of Texas, 70 F.3d 21, 23 (5th Cir. 1995).
Accordingly, we will not consider his lack of legal access argument because he
raises it for the first time on appeal. See Leverette v. Louisville Ladder Co., 183
F.3d 339, 342 (5th Cir. 1999).
      Whether Aduddle’s alleged mental incapacitation constitutes a ground for
tolling is governed by Texas state law. See Burrell, 883 F.2d at 418. A person
has a legal disability warranting tolling under Texas law where that person is
of “unsound mind” at the time that an action accrues. Tex. Civ. Prac. & Rem.
Code Ann. § 16.001(a)(2) and (b); Grace v. Colorito, 4 S.W.3d 765, 769 (Tex. Ct.
App. 1999). Persons of “unsound mind” have been equated with “persons non
compos mentis, mentally disabled persons, insane persons, and other persons
who are mentally incompetent to care for themselves or manage their property
and financial affairs.” Hargraves v. Armco Foods, Inc., 894 S.W.2d 546, 547
(Tex. Ct. App. 1995).
      Although he has submitted two letters from Dr. Jimmy Robertson in
support of his claim, Aduddle offers nothing beyond his own assertions to show
that he remained mentally impaired or a patient at Fort Bend County Jail
infirmary beyond September 19, 2003. See Little, 37 F.3d at 1075. He also fails
to show how Dr. Robertson’s letters, which state only that Aduddle suffered from
depression and anxiety from July through September 2003 establish that he was
of unsound mind continuously from July 2002 until June 2003. See id.; Grace,
4 S.W.3d at 769. He has thus failed to “designate specific facts showing that

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there is a genuine issue for trial” regarding whether his claims are time barred.
Little, 37 F.3d at 1075.
      Aduddle also contends that the district court erred in finding that, as a pro
se plaintiff, he cannot represent the interests of his granddaughter Shana Joy
Stein. As a non-lawyer, Aduddle may not represent the interests of Shana Stein
on a pro se basis, even assuming that he is her legal guardian. See, e.g., Myers
v. Loudon County Pub. Sch., 418 F.3d 395, 401 (4th Cir. 2005). Accordingly, we
deny his motion for appointment of counsel on behalf of Stein. In accordance
with Aduddle’s concessions regarding the addition of Mrs. Aduddle to the action
and the dismissal of the state law claims, we do not address these issues.
      Because he does not challenge on appeal the district court’s March 14,
2006 opinion, wherein the court dismissed all causes of action except for the
excessive force claims, Aduddle has abandoned any challenge to that decision.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      AFFIRMED.




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