     Case: 14-30825      Document: 00512997464         Page: 1    Date Filed: 04/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-30825
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
JEFFERY A. BROUSSARD,                                                        April 8, 2015
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellant            Clerk

v.

IKE BROWN; SAMUEL LACY; SERGEANT HOLMES; BILL HARRISON;
SERGEANT SMITH; HENRY BATES,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:14-CV-720


Before DAVIS, CLEMENT and COSTA, Circuit Judges.
PER CURIAM: *
       Jeffery A. Broussard, Louisiana prisoner # 613311, moves this court for
authorization to proceed in forma pauperis (IFP) in an appeal of the district
court’s judgment dismissing his 42 U.S.C. § 1983 action as frivolous because it
was time barred. Broussard filed the complaint raising a claim of excessive
force and deliberate indifference to serious medical needs. Broussard does not
dispute the district court’s finding that he failed to file his § 1983 action within


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30825

the required one-year prescriptive period. See Johnson v. Crown Enters., Inc.,
398 F.3d 339, 341 (5th Cir. 2005). Rather, he contends that he is entitled to
tolling of the prescriptive period under the Louisiana doctrines of contra non
valentem and continuing tort.
      In denying leave to appeal IFP, a district court may “incorporate by
reference its decision dismissing the prisoner’s complaint on the merits with or
without supplementation,” which is the procedure used in this case. See Baugh
v. Taylor, 117 F.3d 197, 202 n.21 (5th Cir. 1997). By moving to proceed IFP,
Broussard is challenging the district court’s certification that his appeal is not
taken in good faith. See id. at 202. Our inquiry into whether the appeal is
taken in good faith “is limited to whether the appeal involves legal points
arguable on their merits (and therefore not frivolous).” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).
      State tolling law is applicable in a § 1983 action if it is not inconsistent
with federal law or policy.     Hardin v. Straub, 490 U.S. 536, 542 (1989).
Louisiana law allows for suspension of prescription under the doctrine of
contra non valentem. Corsey v. Louisiana, 375 So. 2d 1319, 1321-22 (La. 1979)
The doctrine is applicable in several situations, with the most relevant to the
instant case being, “when the defendant prevents the plaintiff from bringing
suit.” Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999). “The continuing-
tort doctrine is one of accrual and thus a question of federal, rather than state,
law.” Nottingham v. Richardson, 499 F. App’x 368, 375 & n.5 (5th Cir. 2012).
A continuing-tort claim does not accrue until the tort has ceased. Id.
      Broussard raises a nonfrivolous issue with respect to his argument that
he was prevented by the defendants from timely filing his § 1983 action while
he was in custody at the Morehouse Parish Detention Center (MPDC) due to
the fear of retaliation and the denial of access to the courts. Cf. Harris, 198



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                                 No. 14-30825

F.3d at 158-59. The district court did not address Broussard’s arguments for
tolling under Louisiana law, but rather analyzed his claims using federal
equitable tolling principles.   If Broussard is entitled to tolling under the
Louisiana doctrine of contra non valentem until his release from MPDC
custody on September 23, 2013, then his § 1983 complaint filed in March 2014
would be deemed timely filed within the Louisiana prescriptive period. See
Johnson, 398 F.3d at 341.       Further, the district court did not consider
Broussard’s continuing tort argument, which could also render his denial of
medical care claim timely. See, e.g., Lavellee v. Listi, 611 F.2d 1129, 1132 (5th
Cir. 1980).
      Because Broussard has identified a nonfrivolous issue for appeal and is
financially eligible to proceed IFP on appeal, we grant his motion for IFP
status. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220. The district
court’s decision dismissing Broussard’s § 1983 complaint as time barred is
vacated and the case is remanded for further proceedings. We express no view
regarding the disposition of Broussard’s arguments concerning the timeliness
of his § 1983 action under the correct legal standards on remand.
      IFP MOTION GRANTED; VACATED AND REMANDED FOR
FURTHER PROCEEDINGS.




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