Anderson v. Wilkerson, No. 07-30410 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 07-30410 Summary Calendar November 19, 2008 Charles R. Fulbruge III Clerk HARDY ANDERSON Plaintiff-Appellant v. TIM WILKERSON Defendant-Appellee Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:05-CV-932 Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges. PER CURIAM:* Hardy Anderson, Louisiana prisoner # 214350, appeals the district court s dismissal of his 42 U.S.C. § 1983 complaint. In the complaint, which was filed on May 23, 2005, Anderson alleged that he was injured on May 3, 2004, when he was attacked by another inmate. The defendant, Warden Tim Wilkerson, filed an answer and a motion for summary judgment. Based on the magistrate judge s recommendation, the district court concluded that Anderson s complaint was barred by the applicable * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 07-30410 statute of limitations. The district court granted Warden Wilkerson s motion for summary judgment and dismissed Anderson s complaint with prejudice as untimely. Anderson argues that his complaint was not untimely. Anderson is correct. The record reveals that Anderson s pursuit of administrative remedies relating to the May 3, 2004, attack concluded on June 27, 2004. The one-year Louisiana prescriptive period was tolled during the pendency of Anderson s administrative complaint. See Harris v. Hegman, 198 F.3d 153, 160 (5th Cir. 1999). Therefore, Anderson s § 1983 complaint, filed on May 23, 2005, was not barred by the applicable statute of limitations. See id. The judgment of the district court is hereby vacated, and the matter is remanded for further proceedings. VACATED AND REMANDED. 2

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