     Case: 11-11084     Document: 00511909180         Page: 1     Date Filed: 07/03/2012




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

                                                                            FILED
                                                                            July 3, 2012
                                     No. 11-11084
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MATIAS MACIEL,

                                                  Plaintiff-Appellant

v.

CITY OF FORT WORTH DRUG TASK FORCE;
OFFICER BLADSDELL, Official and Individual capacity;
SWAT OFFICERS, Official and Individual capacity,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:11-CV-324


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Matias Maciel, federal prisoner # 34058-080, appeals the district court’s
dismissal, pursuant to 28 U.S.C. § 1915A(b), of his 42 U.S.C. § 1983 complaint
as time barred and the denial of his Federal Rule of Civil Procedure 59(e)
motion. In his complaint, Maciel alleged that the defendants intentionally and




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-11084

knowingly used excessive force which resulted in injuries to him and the death
of his wife.
      Maciel argues that the district court abused its discretion in not applying
the doctrine of equitable tolling to the limitation period. He contends that he
was mentally incapacitated by depression and medication until early 2011 and
that the limitation period was tolled during that time. He submitted his medical
records with his Rule 59(e) motion to show his mental incapacity during the
limitation period.
      We review the dismissal of a complaint for failure to state a claim
pursuant to § 1915A(b) de novo. Green v. Atkinson, 623 F.3d 278, 280 (5th Cir.
2010). Whether the statute of limitations has run or whether equitable tolling
applies is a question of law and, thus, review of the dismissal of the complaint
and the denial of the Rule 59(e) motion is de novo. See Newby v. Enron Corp.,
542 F.3d 463, 468 (5th Cir. 2008); Dearmore v. City of Garland, 519 F.3d 517,
520 (5th Cir. 2008). The party asserting that equitable tolling is warranted has
the burden of producing evidence of his mental incapacity. See Hood v. Sears
Roebuck & Co., 168 F.3d 231, 233 (5th Cir. 1999).
      The applicable statute of limitations, which in Texas is two years, required
Maciel to file a complaint for his personal injuries by July 16, 2009, and to seek
damages for his wife’s wrongful death by November 2009.            See Moore v.
McDonald, 30 F.3d 616, 621 (5th Cir. 1994); Tex. Civ. Prac. & Rem. Code Ann.
§ 16.003. The medical records reflect that Maciel was mentally alert and did not
suffer from a mental condition that would have impaired his ability to file his
complaint within two years of the incident or within two years of the death of his
wife. Rather than rendering him incompetent, the records reflect that the
medication alleviated his anxiety and allowed him to lessen his depression to a
manageable level. He failed to show that he suffered from an ?unsound mind”
under Texas law that would have tolled the limitation period until he filed suit
in May 2011. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.001; Doe v. Henderson

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                                 No. 11-11084

Indep. Sch. Dist., 237 F.3d 631 (5th Cir. 2000) (unpublished) (upholding refusal
to toll statute of limitations where plaintiffs failed to show they suffered from
unsound mind). Further, the record reflects that he failed to act with due
diligence after being discharged from psychological care. See Baldwin County
Welcome Center v. Brown, 466 U.S. 147, 151 (1984). The district court did not
err in determining that the complaint was barred by the statute of limitations
and that application of equitable tolling was not warranted. The judgment is
affirmed.
      The district court’s dismissal of Maciel’s complaint pursuant to § 1915A
counts as a strike for purposes of 28 U.S.C. § 1915(g).        See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Maciel is cautioned that if he
accumulates three strikes, then 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 in imminent danger of serious physical injury. See § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




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