     Case: 14-40485      Document: 00512977672         Page: 1    Date Filed: 03/23/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40485
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 23, 2015
ANDRES JUAREZ,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

MR. ANDERSON, Correctional Officer, TDCJ Ramsey One Unit,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:13-CV-189


Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Andres Juarez, Texas prisoner # 1340121, pro se and in forma pauperis
(IFP), filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that
a correctional officer forced him to work in unsafe conditions, causing him to
injure his spine. He further alleged that although he underwent two spinal
surgeries, he continues to endure severe chronic pain for which the Texas
Department of Criminal Justice has provided inadequate treatment and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40485

denied recommended physical therapy.             The district court sua sponte
dismissed    the      complaint   as   time   barred   pursuant   to   28   U.S.C.
§ 1915(e)(2)(B)(i).
      IFP claims that are time barred are properly dismissed as frivolous
pursuant to § 1915(e)(2)(B)(i), and such dismissals are reviewed for an abuse
of discretion. See Gonzales v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir. 1998);
Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). District courts may raise
the defense of limitations sua sponte in an action proceeding under § 1915.
Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). Before entering a sua
sponte dismissal on limitations grounds, “a court must accord the parties fair
notice and an opportunity to present their positions.” Day v. McDonough, 547
U.S. 198, 210 (2006). The district court in the instant proceeding did not
provide notice that it was considering the limitations issue, nor did it provide
Juarez an opportunity to present his position on the issue. See id.
      The district court determined that Juarez’s complaint, which was filed
in May 2013, was filed at least eight months late. Therefore, the district court’s
analysis suggests that the governing two-year limitations period may have
accrued in September 2010 and expired in September 2012. See Wallace v.
Kato, 549 U.S. 384, 387 (2007); Hitt v. Connell, 301 F.3d 240, 246 (5th Cir.
2002); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a). However, the opinion is
not explicit on this point.
      Juarez has attached to his brief a document indicating that he submitted
legal mail with the address of the U.S. District Court in Galveston to the prison
mail room on August 27, 2012, and that it was mailed via U.S. postal mail on
the same date. If Juarez is correct that he deposited a complaint with prison
officials for mailing on August 27, 2012, then pursuant to the prison mailbox
rule, his complaint would be deemed filed on that date for purposes of the



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                                 No. 14-40485

limitations analysis. See Houston v. Lack, 487 U.S. 266, 271-72 (1988); Cooper
v. Brookshire, 70 F.3d 377, 379-80 (5th Cir. 1995). Because the district court
did not provide Juarez notice that it was considering the limitations issue, or
afford Juarez the opportunity to present his position on the limitations issue,
see Day, 547 U.S. at 210, the record is insufficiently developed for a
determination by this court on the limitations issue. Accordingly, a remand
for further factual development is appropriate. See Stoot v. Cain, 570 F.3d 669,
672 (5th Cir. 2009).
      For the foregoing reasons, we VACATE the judgment of the district court
and REMAND for further proceedings consistent with this opinion.             We
express no opinion regarding proper resolution of this matter.




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