     Case: 11-10125     Document: 00511869365         Page: 1     Date Filed: 05/29/2012




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

                                                                            FILED
                                                                           May 29, 2012
                                     No. 11-10125
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

NORMAN CHARLES OLIVER,

                                                  Plaintiff-Appellant

v.

DAVID BROWN, Chief of Police, Dallas Police Department; CORPORAL
DALLAS POLICE DEPARTMENT; DALLAS POLICE OFFICER,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CV-2154


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Norman Charles Oliver, Texas prisoner # 1544372, filed a civil rights
complaint pursuant to 42 U.S.C. § 1983 against certain Dallas police officers and
emergency personnel, alleging that they violated various constitutional rights
after Oliver was purportedly assaulted by gang members on July 19, 2008.
Oliver signed his complaint on October 12, 2010, and it was received by the
district court on October 14, 2010. The magistrate judge sua sponte concluded


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-10125    Document: 00511869365       Page: 2   Date Filed: 05/29/2012

                                   No. 11-10125

that Oliver’s complaint was barred by the applicable two-year statute of
limitations and recommended dismissing the complaint as frivolous pursuant to
28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A. Oliver filed a response and offered
evidence that he delivered documents related to a civil rights complaint to prison
officials for mailing to the district court, and that the documents were mailed on
July 9, 2010. The district court accepted the magistrate judge’s findings and
recommendation and dismissed Oliver’s complaint. Oliver appealed, a judge of
this court granted Oliver leave to proceed in forma pauperis (IFP), and the
Dallas City Attorney’s Office filed an amicus brief to represent the position of the
unserved city officials. We vacate the district court’s judgment and remand for
further factual development.
      As a threshold matter, the amicus argues that Oliver has waived the issue
of limitations by failing to brief it. Although Oliver’s pro se brief addresses only
the merits of his claims and not the district court’s ruling on limitations, Oliver’s
IFP brief addressed this question. Further, the amicus has analyzed the issue
and has not asserted any prejudice resulting from Oliver’s deficient brief.
Accordingly, we exercise our discretion to consider the limitations question. See
Grant v. Cuellar, 59 F.3d 523, 525 (5th Cir. 1995); Price v. Digital Equip. Corp.,
846 F.2d 1026, 1028 (5th Cir. 1988).
      We review the dismissal as frivolous for an abuse of discretion. Martin v.
Scott, 156 F.3d 578, 580 (5th Cir. 1998); Norton v. Dimazana, 122 F.3d 286, 291
(5th Cir. 1997). A district court abuses its discretion when its decision is based
on a legal error “or on a clearly erroneous assessment of the evidence.” Tollett
v. City of Kemah, 285 F.3d 357, 363 (5th Cir. 2002) (internal quotation marks
and citation omitted).
      In his objections to the magistrate judge’s report and recommendation,
Oliver argued that his “initial claim,” including a requested IFP statement, had
been mailed in July within the limitations period, and that authorities had lost
it. In support of this contention, he offered several documents, including an

                                         2
   Case: 11-10125      Document: 00511869365    Page: 3    Date Filed: 05/29/2012

                                   No. 11-10125

inquiry response from the prison library, which indicated that an IFP statement
he requested was “processed” on July 8, 2010; an inquiry to the mail room dated
August 16, 2010, in which he asked whether his IFP account statement and
other unspecified “documents to be filed in the Southern District Federal Court”
had been mailed; a response to that inquiry indicating that his documents had
been “mailed out” on July 9, 2010; a copy of a September 20, 2010, letter to the
clerk of the Southern District of Texas, asking whether the court had received
a § 1983 claim that he filed in July, followed by a response in the negative; and
a copy of a letter he wrote to a judge in the Southern District on September 30,
regarding a paper rejected as deficient, with a response that there were no
filings in his name.
        If Oliver did deliver a § 1983 complaint to prison officials for mailing
within the limitations period, he may be entitled to the benefit of the mailbox
rule.   See Medley v. Thaler, 660 F.3d 833, 840 (5th Cir. 2011); Cooper v.
Brookshire, 70 F.3d 377, 379-80 (5th Cir. 1995).          The record, however, is
insufficiently developed on this point. Although the amicus urges us to follow
Aleman v. San Antonio Police Dep’t, 411 F. App’x 709, 709-10 (5th Cir. 2011),
that case is distinguishable given the evidence Oliver provided supporting his
assertions.     Accordingly, a remand for further factual development is
appropriate. See Stoot v. Cain, 570 F.3d 669, 671-72 (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 the proper resolution of this matter.
        VACATED AND REMANDED.




                                         3
