Rivera v. Baton Rouge City Pol, 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that this opinion should not be published and is not precedent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
September 17, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30391
Summary Calendar
TERRY A. RIVERA,
Plaintiff-Appellant,
versus
BATON ROUGE CITY POLICE DEPARTMENT;
EUGENE SMITH,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
(02-CV-1179)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Terry A. Rivera, Louisiana prisoner # 121787, appeals the 28
U.S.C. § 1915(e) dismissal of his 42 U.S.C. § 1983 complaint, in
which he alleges that a detective altered documents in order to
bolster a criminal charge against him. The complaint was dismissed
as frivolous and for failure to state a claim because it was time-
barred. “Where it is clear from the face of a complaint filed in
forma pauperis that the claims asserted are barred by the

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applicable statute of limitations, those claims are properly
dismissed pursuant to § 1915.” Gonzales v. Wyatt, 157 F.3d 1016,
1019-20 (5th Cir. 1998) (emphasis added). Rivera contends an
action he timely filed in state court is still pending and tolled
the limitations period.
The applicable limitations (prescriptive period) for a § 1983
claim in Louisiana is one year. LA. CIV. CODE ANN. art. 3492; Elzy
v. Roberson, 868 F.2d 793, 794-95 (5th Cir. 1989). Rivera’s action
accrued when he knew, or had reason to know, of the injury or
damages which forms the basis of his action. See Piotrowski v.
City of Houston, 51 F.3d 512, 516 (5th Cir. 1995). Therefore,
because Rivera’s complaint states he discovered the altered
documents before his release from jail on 27 August 2000, his claim
accrued, at the latest, on that date. Absent tolling of the one-
year limitations period, his complaint is time-barred. See, e.g.,
Burge v. Parish of St. Tammany, 996 F.2d 786, 788 (5th Cir. 1993)
(in § 1983 action, federal courts borrow state law for tolling
provisions).
Under Louisiana law, the pendency of an action can interrupt
the limitations period. See New York Life Ins. Co. v. Deshotel,
142 F.3d 873, 883 (5th Cir. 1998); LA. CIV. CODE ANN. art. 3462 &
3463. According to Rivera, the instant action contains “the same
plaintiff, the same defendants, and the same incident complained of
in his state suit”, which is still pending. He also claims that

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his state action was filed on 22 August 2001, which was less than
one year from the latest date Rivera knew of the altered documents.
Consequently, it is not clear from the face of Rivera’s
complaint that this action is time-barred.
VACATED; REMANDED

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