Filed: Oct. 20, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 21, 2003 Charles R. Fulbruge III Clerk No. 03-20159 Conference Calendar JOE GAMBOA RODRIGUEZ, Plaintiff-Appellant, versus TOM OTT; ALBERT MARTINEZ MEDINA, Defendants-Appellees. - Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CV-1293 - Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges. PER CURIAM:* Joe Gamboa Rodri
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 21, 2003 Charles R. Fulbruge III Clerk No. 03-20159 Conference Calendar JOE GAMBOA RODRIGUEZ, Plaintiff-Appellant, versus TOM OTT; ALBERT MARTINEZ MEDINA, Defendants-Appellees. - Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CV-1293 - Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges. PER CURIAM:* Joe Gamboa Rodrig..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2003
Charles R. Fulbruge III
Clerk
No. 03-20159
Conference Calendar
JOE GAMBOA RODRIGUEZ,
Plaintiff-Appellant,
versus
TOM OTT; ALBERT MARTINEZ MEDINA,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-1293
--------------------
Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Joe Gamboa Rodriguez, federal prisoner # 60252-079, appeals
the 28 U.S.C. § 1915A dismissal of his Bivens** action as
frivolous. The district court determined that the suit was both
untimely and barred by Heck v. Humphrey,
512 U.S. 477 (1994).
Under 28 U.S.C. § 1915A, the district court is required to
dismiss sua sponte any frivolous complaint filed by a prisoner
*
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that this opinion should not be published and is not precedent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.
**
Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics,
403 U.S. 388 (1971).
No. 03-20159
-2-
against a “governmental entity or officer or employee of a
governmental entity.” Rodriguez argues that dismissal under
28 U.S.C. § 1915A was error because the named defendants are
two confidential informants who, though state actors for purposes
of Bivens, were not “governmental employees” for purposes of
28 U.S.C. § 1915A.
Even if the district court’s dismissal under 28 U.S.C.
§ 1915A was error, it was harmless. The suit is clearly time-
barred. See Jacobsen v. Osborne,
133 F.3d 315, 319 (5th Cir.
1998) (applicable limitations period is borrowed from the forum
state); see also TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West
1999) (Texas’ applicable limitations period is two years).
Rodriguez’s cause of action accrued at the latest on the date
of his conviction in 1993, but he waited to file the instant
suit until 2002, nine years later. Thus, as the district court
determined, the suit is untimely, and Rodriguez does not argue
that it is not. Consequently, even if the district court erred
in employing 28 U.S.C. § 1915A as the procedural vehicle for its
dismissal, the error was harmless, and Rodriguez has not shown
otherwise. See Bazrowx v. Scott,
136 F.3d 1053, 1054 (5th Cir.
1998). The district court’s judgment is therefore AFFIRMED.