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

                                                 FILED
                                                                           October 1, 2009
                                     No. 09-50062
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

CARY A. WILKE,

                                                   Plaintiff-Appellant

v.

BARBARA MEYER; JAN DAVIS; TROY BENNETT, JR.,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:08-CV-653


Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
       While confined at a Texas correctional institution, Appellant Cary A.
Wilkes (“Wilkes”) filed a complaint pursuant to 42 U.S.C. §1983. The district
court found the action to be barred by the statue of limitations. Wilkes now
appeals the district court’s findings.
       The §1983 action stems from Wilkes’ previous federal application for
habeas corpus relief which was dismissed as time barred. Wilkes contends that



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 09-50062

the untimeliness of his federal habeas application was the fault of the Gillespie
County District Clerk’s Office and the Texas Court of Criminal Appeals. Wilkes
filed his state application on February 6, 2004, with only 37 days remaining of
the one-year limitation period for filing a federal application for habeas relief.
The Texas Court of Criminal Appeals dismissed his state application on July 21,
2004 because the application did not comply with the Texas Rules of Appellate
Procedure. As a result, his state application did not toll the limitations period
for filing his federal application.   The district court dismissed his federal
application as time barred on September 5, 2006. Wilkes contends that clerks
at the District Clerk’s Office were negligent and should not have accepted his
state application on February 6, 2004 if it was non-compliant. Wilkes also
argues that the clerk at the Court of Criminal Appeals should not have accepted
the transmittal of his state application on June 7, 2004, and that the clerk
should have acted more swiftly in returning Wilkes’s state application after it
was determined to be non-compliant.
      Wilkes filed his §1983 action on August 29, 2008. The district court found
the §1983 action to be barred by the statute of limitations and dismissed the
complaint as frivolous pursuant to 28 U.S.C. §1915(e)(2). This court reviews the
underlying question of law, such as whether the statute of limitations has run,
de novo. Newby v. Enron Corp, 542 F.3d 463, 468 (5th Cir. 2008). The district
court may dismiss an in forma pauperis proceeding sua sponte under 28 U.S.C.
§ 1915(e) if it determines the complaint is frivolous. There is no federal statute
of limitations for §1983 claims and the federal courts borrow the forum state’s
general personal injury limitations period.     Piotrowski v.   City of Houston,
51 F.3d 512 n.5 (5th Cir. 1995). In Texas, the applicable limitations period is
two years. Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). Although
Texas law governs the limitations period and tolling exceptions, federal law
governs when the causes of action accrued. Burrell v. Newsome, 883 F.2d 416,



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                                 No. 09-50062

418 (5th Cir. 1989). Under federal law, a cause of action accrues “when plaintiff
knows or has reason to know of the injury which is the basis of the action.” Id.
      Wilkes argued that his action is within the statute of limitations because
his cause of action accrued on September 5, 2006 when his federal habeas
application was dismissed as time-barred. The district court disagreed and
found that Wilkes’ cause of action accrued and the statute of limitation began to
run on July 21, 2004, when the Texas Court of Criminal Appeals dismissed his
state habeas application. Wilkes claims that the district court’s finding was in
error. We disagree. Applying the standard of Burrell, we find that Wilkes had
reason to know he had suffered the alleged injury when his state application was
returned as non-compliant on or about July 21, 2004. Thus, his §1983 action,
filed on August 29, 2008 was brought outside          the applicable statute of
limitations and was properly barred by the district court.
      AFFIRMED.




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