                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 December 6, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 05-40148
                           Summary Calendar



JOHN WAYNE CHARLESTON,

                                     Plaintiff-Appellant,

versus

PAUL BOONE; KENETH KING; DENISE HATTAN,

                                     Defendants-Appellees.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                        USDC No. 2:03-CV-341
                        --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant John Wayne Charleston, Texas prisoner

#894099, appeals the district court’s dismissal of his 42 U.S.C. §

1983 complaint as barred by the applicable statute of limitations.

He argues that the district court failed to consider his timely-

filed    objections   to   the   magistrate   judge’s    report       and

recommendation and that his civil rights complaint was timely filed

because he placed his complaint in a related state tort suit

against the defendants in the prison mailbox on April 23, 2001.


     *
       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this opinion should not be published and is not precedent except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.
     In the 42 U.S.C. § 1983 context, a federal court “borrows” a

statute    of    limitations     from       the   forum        state’s    general

personal-injury limitations provision.            See Jacobsen v. Osborne,

133 F.3d 315, 319 (5th Cir. 1998).           In Texas, that period is two

years.    Hitt v. Connell, 301 F.3d 240, 246 (5th Cir. 2002).                   A

federal court also gives effect to the state’s tolling provisions.

Slack v. Carpenter, 7 F.3d 418, 419 (5th Cir. 1993).                  “[A] § 1983

action generally accrues when a plaintiff ‘knows or has reason to

know of the injury which is the basis of the action.’”                   Harris v.

Hegmann, 198 F.3d 153, 157 (5th Cir. 1999).

     Although Charleston knew the facts supporting his claims

against the defendants on April 27, 1999, his 42 U.S.C. § 1983 suit

was not filed until September 2003, after the two-year limitations

period had expired.     Charleston has not cited any authority to

support the     proposition    that   the    pendency     of    his   state   tort

litigation tolled the statute of limitations for filing his federal

civil rights suit.      See Ellis v. Dyson, 421 U.S. 426, 432-33

(1975); cf. Jackson v. Johnson, 950 F.2d 263, 264-65 (5th Cir.

1992); cf. Rogers v. Ricane Enterprises, Inc., 930 S.W. 2d 157, 167

(Tex. App. 1996)    Given that this same argument was raised in his

objections to the magistrate judge’s report, the district court’s

failure to consider said objection was harmless.                   See Smith v.

Collins, 964 F.2d 483, 485 (5th Cir. 1992).

     Charleston’s appeal is without arguable merit.               See Howard v.

King, 707 F.2d 215, 220 (5th Cir. 1983).           Accordingly, we dismiss

                                      2
the appeal as frivolous.       5TH CIR. R. 42.2.     The dismissal of the

instant appeal as frivolous counts as a strike for purposes of the

three-strikes provision, 28 U.S.C. § 1915(g).            See Adepegba v.

Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).                Charleston is

CAUTIONED that if 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       28    U.S.C.

§ 1915(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.




                                     3
