Kay v. Perret

* 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that this opinion should not be published and is not precedent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
June 24, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-21303
Conference Calendar
LISA R. KAY,
Plaintiff-Appellant,
versus
SUSAN JACOBSEN PERRET, also known as Jake Perret,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-3375
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Lisa R. Kay, Texas prisoner # 707717, appeals the district
court’s dismissal of her 42 U.S.C. § 1983 complaint as frivolous
pursuant to 28 U.S.C. § 1915(e)(2). Kay’s letter to the clerk
of May 14, 2003, has been construed as a motion for leave to file
a supplemental brief. See FED. R. APP. P. 28; 5TH CIR. R. 28.5.
Because it provides no new relevant argument or caselaw, this
motion is denied.

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No. 02-21303
-2-
The district court properly found that Kay’s complaint,
filed in September 2002, was time-barred. Kay was aware of the
facts underlying her complaint as early as November 1996, when
she sent a letter to the State Bar of Texas complaining of
Perret’s conduct. To the extent that Kay’s complaint involves an
allegedly fraudulent letter prepared by Perret in an attempt to
conceal her misconduct, Kay acknowledges that she received a
copy of this letter in 1998. We also conclude that Kay is not
entitled to equitable tolling during the time she pursued a
grievance against Perret with the State Bar of Texas; exhaustion
of such a grievance was not a prerequisite to the filing of
her complaint, and thus her grievance did not toll the
limitations period. Accordingly, her claims against Perret are
barred by the statute of limitations. See Owens v. Okure, 488
U.S. 235, 250 (1989); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a)
(West 2001) (two-year limitations period).
The district court also properly concluded that the
complaint lacked merit because, as appointed counsel, Perret was
not acting under color of state law for purposes of 42 U.S.C.
§ 1983 liability. See Polk County v. Dodson, 454 U.S. 312, 325
(1981). The district court did not abuse its discretion in
dismissing Kay’s claim as frivolous. See Black v. Warren,
134 F.3d 732, 734 (5th Cir. 1998).
MOTION TO FILE SUPPLEMENTAL BRIEF DENIED; AFFIRMED.

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