Edward Smith v. TX Dept of Criminal Justice, et al, No. 11-50470 (5th Cir. 2011)
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Case: 11-50470 Document: 00511620134 Page: 1 Date Filed: 10/03/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED October 3, 2011 No. 11-50470 Summary Calendar Lyle W. Cayce Clerk EDWARD DESHAN SMITH Plaintiff - Appellant v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Correctional Institution; T. LESTER, Warden; SERGEANT TURNER; SERGEANT DAVIS; OFFICER KNIGHTEN, Defendants - Appellees Appeal from the United States District Court for the Western District of Texas USDC No. 1:11-CV-128 Before KING, JOLLY, and GRAVES, Circuit Judges. PER CURIAM:* Edward Deshan Smith appeals the district court s dismissal of his complaint, with prejudice, as time-barred. In his complaint, filed on February 16, 2011, Smith alleged that on May 21, 2004, and on December 22, 2005, while he was incarcerated, prison officials used excessive force against him. The magistrate judge construed Smith s complaint as one alleging a cause * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 11-50470 Document: 00511620134 Page: 2 Date Filed: 10/03/2011 No. 11-50470 of action under 42 U.S.C. § 1983, and recommended that it be dismissed for failure to state a claim upon which relief could be granted because Smith s claims are barred by the statute of limitations. See Owens v. Okure, 488 U.S. 235, 249 50 (1989) ( where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions ); Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) ( Texas general personal injury limitations period is two years. ) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a)). The district court overruled Smith s objections to the magistrate judge s report and accepted the magistrate judge s recommendation to dismiss the complaint with prejudice as time-barred. In his pro se brief, which we construe liberally, Smith seems to contend that a four- or five-year statute of limitations should apply to his claims. Even if we accepted this contention, it would not help Smith, because he filed his complaint more than five years after the complained-of conduct. The judgment of the district court is AFFIRMED. Smith s motion for appointment of counsel is DENIED. AFFIRMED; MOTION DENIED. 2
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