Bernard v. Brannigan, et al

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 24, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-10931
Conference Calendar
PETER MARTIN BERNARD,
Plaintiff-Appellant,
versus
BRANNIGAN, Correctional Officer; JOHN AND OR JANE DOE,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:05-CV-14
--------------------
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Peter Martin Bernard, Texas prisoner # 581959, appeals the
dismissal of his pro se, in forma pauperis (IFP) 42 U.S.C. § 1983
complaint as frivolous and for failure to state a claim for which
relief can be granted. In his complaint, he alleged that in July
2000, the defendants planted a shank in his cell in retaliation
for his filing a grievance against Brannigan regarding
Brannigan’s noncompliance with the prison guard dress code.
Federal courts apply state personal-injury limitations
periods to actions brought under § 1983. Burrell v. Newsome,

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No. 05-10931
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883 F.2d 416, 418 (5th Cir. 1989). The applicable Texas
limitations period is two years. Ali v. Higgs, 892 F.2d 438,
439 (5th Cir. 1990).
There is no dispute that Bernard’s claim accrued, at the
latest, on July 11, 2000, when he was released from solitary
confinement. Thus, his complaint should have been filed on or
before July 11, 2002. Although Bernard’s first § 1983 complaint
alleging the same claim was filed before the expiration of the
limitations period, because the complaint was dismissed without
prejudice for failure to pay the filing fee, it had no tolling
effect. See Lambert v. United States, 44 F.3d 296, 298 (5th Cir.
1995). Thus, Bernard’s current § 1983 complaint filed in 2005 is
untimely. We affirm the judgment of the district court on this
basis. Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).
The district court’s dismissal of Bernard’s complaint as
frivolous and for failure to state a claim counts as a strike
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387 (5th Cir. 1996). Bernard accumulated one previous
strike in Bernard v. Tong, No. 2:97-CV-0368 (N.D. Tex. Sept. 8,
1998). Bernard is cautioned that if he accumulates three
strikes, he will not be allowed to proceed IFP 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 § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.

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