     Case: 18-20312       Document: 00515016623         Page: 1    Date Filed: 07/01/2019




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

                                                                                 FILED
                                    No. 18-20312                              July 1, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
RODNEY JOHN RAMIREZ,

                                                  Plaintiff-Appellant

v.

JOHN/JANE DOE #1, Chairperson, Texas Department of Criminal Justice -
Classification and Records Office; JOHN/JANE DOE #2, Assistant Director,
Texas Department of Criminal Justice - Classification and Records Office;
JOHN/JANE DOE #3, Intake Administrator, Texas Department of Criminal
Justice - Classification and Records Office; JOHN/JANE DOE #4, Intake
Interviewer, Texas Department of Criminal Justice - Classification and
Records Office,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CV-2750


Before HIGGINBOTHAM, ELROD, and GRAVES, Circuit Judges.
PER CURIAM: *
       Rodney John Ramirez, Texas prisoner # 864913, appeals the dismissal
of his 42 U.S.C. § 1983 complaint under 28 U.S.C. § 1915(e)(2)(B) with


       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
    Case: 18-20312     Document: 00515016623      Page: 2   Date Filed: 07/01/2019


                                   No. 18-20312

prejudice as time barred.         His complaint alleged a claim of wrongful
imprisonment. Ramirez was sentenced on April 6, 1989, in connection with his
conviction for the third degree felony offense of theft over $750, to six years of
imprisonment with a credit of 48 days.        He asserted that, when he was
processed by the Texas Department of Criminal Justice (TDCJ) in October
1989, unknown personnel erroneously listed his conviction as the first degree
felony offense of burglary of a habitation. Ramirez stated that the convicting
court issued a judgment nunc pro tunc on April 20, 1990, wherein the time
credit was increased to 116 days, and claimed that the judgment removed the
inaccurate reference to the offense being Burglary of a Habitation. Ramirez
further claimed that the convicting court, in December 1991, issued a second
judgment nunc pro tunc instructing TDCJ officials to conform its records to
reflect a conviction for theft.     Ramirez indicated that he discharged the
sentence on March 18, 1995, and that, on January 25, 2016, the trial court
again ordered the TDCJ to correct its records; the records were corrected on
May 9, 2016. Ramirez argues that the district court abused its discretion in
dismissing his complaint as time barred. He asserts that the limitations period
was tolled when he received the court’s order on April 20, 1990, and that it
remained tolled until the TDCJ corrected its records on May 9, 2016. He also
complains that Texas officials failed to comply with state law requirements
when he discharged the sentence.
      We review the district court’s dismissal pursuant to § 1915(e)(2)(B)(i) for
an abuse of discretion. Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir. 2009).
Because no federal statute specifies a limitation period for § 1983 suits, federal
law borrows the forum state’s general personal injury limitation period.
Wallace v. Kato, 549 U.S. 384, 387-88 (2007). In Texas, the applicable period
is two years. TEX. CIV. PRAC. and REM. CODE ANN. § 16.003(a).



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                                  No. 18-20312

      Although the Texas limitations period applies, federal law governs when
Ramirez’s claim accrued. See Wallace, 549 U.S. at 387. Under federal law, the
statute of limitations commences when the plaintiff becomes aware that he has
suffered an injury. Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir.
1995).
      Though Ramirez suggests that the convicting court documents from 1990
and 1991 led him to believe that the TDCJ records had been corrected, these
documents do not support his argument. Neither document directs the TDCJ
to corrects its records. There is no indication that Ramirez filed anything to
correct the error until 2015, and Ramirez does not dispute the district court’s
finding that he discovered the error in 1989. Even if Ramirez did not discover
the error in 1989 but instead discovered it when the sentence was discharged
in 1995, the instant § 1983 complaint was still filed in 2017, well after the
expiration of the statute of limitations. There is no showing of diligence or lack
of notice of a filing requirement that would support tolling of the limitations
period. See Hand v. Stevens Transport, Inc., 83 S.W.3d 286, 293 (Tex. App.
2002). The district court did not abuse its discretion by dismissing Ramirez’s
complaint under § 1915(e)(2)(B)(i). See Brewster, 587 F.3d at 767.
      The judgment of the district court is AFFIRMED.




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