     Case: 10-41346     Document: 00511669502         Page: 1     Date Filed: 11/17/2011




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

                                                                            FILED
                                                                        November 17, 2011
                                     No. 10-41346
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MELVIN WILSON,

                                                  Plaintiff-Appellant

v.

UNITED STATES PENITENTIARY LEAVENWORTH, Federal Bureau of
Prisons Head Officials; FEDERAL CORRECTIONAL INSTITUTION
BEAUMONT - MEDIUM, Federal Bureau of Prisons Head Officials; UNITED
STATES OF AMERICA,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:09-CV-150


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Melvin Wilson, federal prisoner # 04402-017, appeals the district court’s
28 U.S.C. § 1915(e) dismissal, as time barred, of his complaint seeking relief
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), and the Federal Tort Claims Act (FTCA). Wilson argues that
the district court erred in dismissing his Bivens claims as time barred because

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41346    Document: 00511669502      Page: 2   Date Filed: 11/17/2011

                                     No. 10-41346

he filed suit within two years of learning that he had sustained an injury due to
the defendants’ deliberate indifference to his long-term exposure to
environmental smoke.
      “[W]here it is clear from the face of a complaint filed in forma pauperis
that the claims asserted are barred by the applicable statute of limitations, those
claims are properly dismissed” as frivolous pursuant to § 1915(e). Gartrell v.
Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). Review is for abuse of discretion. Id.
      Wilson’s pleadings reflect that he had knowledge that his health had been
affected or put at risk by exposure to environmental smoke on or before
September 28, 2004 and, thus, the limitation period began to run on that date.
See Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001). The statute
of limitations was tolled while Wilson exhausted his available prison
administrative remedies between August 10, 2006, and February 6, 2007. See
Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999).             However, even
considering the time that the limitation period was tolled by the pending
grievances, Wilson failed to file his Bivens complaint within the two year
limitation period. See Gartrell, 981 F.2d at 256; TEX. CIV. PRAC. & REM. CODE
ANN. § 16.003(a).
      Wilson argues that the limitation periods for both his Bivens and FTCA
tort claims should have been equitably tolled. The district court’s refusal to
equitably toll a limitation period is reviewed for abuse of discretion. Teemac v.
Henderson, 298 F.3d 452, 456 (5th Cir. 2002). Equitable tolling has been
granted most frequently when a defendant has actively misled a plaintiff about
the cause of action or has prevented him “in some extraordinary way from
asserting his rights.” Id. at 457.
      Wilson has not alleged any facts that show that the Bivens defendants took
any action to preclude him from filing his complaint within the two-year
limitation period. His prison grievances were addressed in a timely manner, and
he had the opportunity to file suit within the limitation period.

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   Case: 10-41346   Document: 00511669502     Page: 3   Date Filed: 11/17/2011

                                 No. 10-41346

      With respect to his FTCA claims, Wilson does not dispute that he failed to
file his complaint within six months of the July 1, 2008 mailing of the denial of
his claims, the statutory limitation period. See 28 U.S.C. § 2401(b). However,
he argues that the limitation period should be subject to equitable tolling
because the Government did not respond to his administrative complaint in a
timely manner and because he was subjected to a prison lockdown that
precluded his obtaining legal material. Wilson has not alleged any action on the
part of a representative of the United States that prevented him from filing his
complaint within the six-month limitation period. The officer denying his
complaint expressly advised Wilson concerning the limitation period for filing
suit and he had an adequate opportunity to do so.
      Following the administrative denial of his FTCA claim, Wilson was on
lockdown during the six-month limitation period for only one week.           His
preparation time should not have been lengthy because he had already raised
his claims in two administrative proceedings. Wilson has not shown that he
acted with due diligence or that the defendant prevented him from filing a
timely complaint. The district court did not abuse its discretion in refusing to
apply equitable tolling.
      AFFIRMED.




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