     Case: 09-20689     Document: 00511108323          Page: 1    Date Filed: 05/12/2010




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

                                                  FILED
                                                                            May 12, 2010
                                     No. 09-20689
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

IVAN DARRELL GIBSON,

                                                   Plaintiff-Appellant

v.

HOUSTON LAUNCH PAD; PRENTICE GOODS, Director; JOHN DOE,
Staff/Employee,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-1377


Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Ivan Darrell Gibson, Texas prisoner # 500823, appeals from the dismissal
of his civil action as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(I) due to the
two-year statute of limitations applicable to 42 U.S.C. § 1983 claims brought in
Texas.      In his civil action, Gibson brought claims pursuant to the Eighth
Amendment and § 1983, the Americans with Disabilities Act (ADA), the Texas
Deceptive Trade Practices Act (DTPA), Texas contract law, and Texas fraud law.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20689

      Gibson contends in this court that the district court erred by dismissing
his claims as time barred because he was mentally incompetent due to
schizophrenia and manic depressive disorder and the use of psychoactive
medications to treat those disorders until he was placed on the TDCJ’s Allred
Unit, where he received psychotherapy and a correct dosage of medication. He
alleges that the defendants’ alleged infliction of emotional distress was one of the
causes of his mental incompetence. He argues that his disability delayed the
commencement of the limitations period. Gibson alleges that he emerged from
his state of mental incompetence in 2007. He alleged none of these facts in the
district court, however.
      Gibson also argues that his common law fraud claim was subject to Texas’s
four-year statute of limitations and that his ADA claim was subject to no statute
of limitations. On appeal, he does not mention the contract and fiduciary duty
claims he raised in the district court. He has abandoned any argument that the
district court erred by failing to determine whether those claims were time
barred. See In re Municipal Bond Reporting Antitrust Litigation, 672 F.2d 436,
439 n.6 (5th Cir. 1982).
      Gibson’s § 1983, ADA, and DTPA claims all were subject to a two-year
limitations period. See Frame v. City of Arlington, 575 F.3d 432, 437 (5th Cir.
2009) (ADA); Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (§ 1983);
Fieldtech Avionics & Instruments, Inc. v. Component Control Com., Inc.,
262 S.W. 3d 813, 830 (Tex. App. 2008) (DTPA).          Gibson’s otherwise vague
allegations suggest that he might have suffered serious mental afflictions that
were treated with psychoactive medications. His allegations do not, however,
indicate how those conditions or medications rendered him unable to care for
himself or manage his affairs such that the limitations period should have been
tolled until he regained mental competency. See T EX . C IV. P RAC. & R EM.C ODE


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                                  No. 09-20689

A NN. § 16.001(a)(2) and (b); Aduddle v. Body, 277 F. App’x 459, 461 (5th Cir.
2008). In light of such deficiencies, Gibson’s § 1983, ADA, and DTPA claims
were time barred, and the district court’s dismissal as to those claims is affirmed
on that ground.
      Gibson contended in the district court that the defendants committed
fraud by misrepresenting that they would keep private any information about
treatment and his approved visitors list, then defaming him by disclosing this
information to his girlfriend.       He also asserted that the defendants
misrepresented that the facility would be kept locked and nobody other than
those on approved visitors lists would be allowed onto the grounds.
      In Texas, common law fraud claims are subject to a four-year statute of
limitations. T EX. C IV. P RAC. & R EM. C ODE A NN. § 16.004(a)(4). The fraud claim
raised in Gibson’s April 28, 2008, complaint was not time barred as to the events
of August 30, 2004.
      A district court must sua sponte dismiss a prisoner’s IFP complaint if the
action is malicious or frivolous, fails to state a claim, or seeks monetary relief
from a defendant who is immune. § 1915(e)(2)(B). A claim may be dismissed as
frivolous if it does not have an arguable basis in fact or law. Geiger v. Jowers,
404 F.3d 371, 373 (5th Cir. 2005).
      Gibson’s allegations suggest that the Houston Launch Pad (HLP) staff
violated its own procedures and HLP’s contract with the state by allowing his
girlfriend inside the facility and providing her with information. Gibson did not
allege that HLP knowingly and falsely informed him of its policies and
procedures. Nor do his allegations suggest that HLP staff intended for him to
rely on misrepresentations about the facility’s policies.     He failed to make
allegations sufficient to give rise to a nonfrivolous common law fraud claim. See
Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W. 3d 573, 577 (Tex.


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                                   No. 09-20689

2001). The district court’s dismissal of the action as frivolous is affirmed as to
the common law fraud claim on that ground. See Sojourner T v. Edwards,
974 F.2d 27, 30 (5th Cir. 1992).
      The district court’s dismissal of Gibson’s action as frivolous counts as a
strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). Gibson is warned that if he accumulates three strikes, he may
not proceed in forma pauperis in any civil action or appeal while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
      AFFIRMED. SANCTION WARNING IMPOSED.




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