     Case: 13-30171       Document: 00512343869           Page: 1    Date Filed: 08/16/2013




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

                                                                              FILED
                                                                           August 16, 2013
                                     No. 13-30171
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

CRAIG VICTORIAN,

                                                   Plaintiff-Appellant

v.

LYNN COOPER; SECURITY STAFF AVOYELLES CORRECTIONAL
CENTER; TERRY BORDELON; NATE CAIN,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:12-CV-2001


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Proceeding pro se and in forma pauperis, Craig Victorian, Louisiana
prisoner # 170437, appeals the dismissal of his 42 U.S.C. § 1983 complaint as
frivolous and for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)
and § 1915A. We review the dismissal de novo. See Black v. Warren, 134 F.3d
732, 733-34 (5th Cir. 1998); Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).


       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 13-30171

      Victorian argues that his action meets the standard of deliberate
indifference. He cites Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987), in which
that court held that the prisoner’s allegations stated a colorable claim under
the Eighth and Fourteenth Amendments. Gill alleged that Mooney, a prison
employee, ordered him to continue working after Gill had informed Mooney
that the ladder was unsafe, and Gill fell from the ladder and injured himself.
Victorian argues that ordering an inmate to use a bucket to stand on instead
of a ladder also amounts to deliberate indifference.
      To establish deliberate indifference in the context of the Eighth
Amendment, an inmate must show that the defendants (1) were aware of facts
from which an inference of an excessive risk to an inmate’s health or safety
could be drawn and (2) drew an inference that such potential for harm existed.
Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a prison official acts with
deliberate indifference “only if he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take reasonable measures
to abate it.” Id. at 847. Victorian did not allege any facts from which an
inference of an excessive risk of harm could be drawn, nor did he allege that the
defendants actually drew such an inference. Even if the allegation, made for
the first time in his objections and not made in his complaint, that he was
required to use a bucket is credited, it amounts to no more than a claim of
negligence and not deliberate indifference.
      With regard to the statute of limitations, Victorian argues that the
district court failed to consider the time it took for his injury to heal and that
he should not be held to the same standard because he was proceeding pro se.
The statute of limitations for a § 1983 claim is the same as the statute of
limitations in a personal injury action in the state in which the claim accrues.
See Kissinger v. Foti, 544 F.2d 1257, 1258 (5th Cir. 1977). The limitations


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                                  No. 13-30171

period begins to run “the moment the plaintiff becomes aware that he has
suffered an injury or has sufficient information to know that he has been
injured.” Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001)
(internal quotation marks and citation omitted). Victorian’s pro se status is “no
defense to the absolute bar of the statute of limitations.” See Kissinger, 544
F.2d at 1258.
      The district court did not err in dismissing Victorian’s complaint as
frivolous and for failure to state a claim. See Black, 134 F.3d at 733-34; Geiger,
404 F.3d at 373.
      Victorian’s appeal is without arguable merit and is frivolous.          See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is
frivolous, it is dismissed. See 5TH CIR. R. 42.2.
      The dismissal of this appeal as frivolous and the district court’s dismissal
as frivolous and for failure to state a claim each count 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). We caution Victorian that once he accumulates three strikes, he
may not proceed in forma pauperis 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).
      APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.




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