Theoshamond Norman v. Jerry Johnson
690 F. App'x 172
| 5th Cir. | 2017Background
- Plaintiff Theoshamond Norman, a Louisiana prisoner, appealed the district court’s grant of summary judgment dismissing his 42 U.S.C. § 1983 suit as untimely and moved for leave to proceed in forma pauperis (IFP).
- The district court found the suit prescribed under Louisiana’s one-year liberative prescription and granted summary judgment for the defendant; it also certified the appeal was not taken in good faith.
- On summary judgment the defendant showed the limitations period had expired; the burden then shifted to Norman to show an exception or tolling applied.
- Norman argued on appeal that limited access to a notary delayed filing, but the record contained undated/notarized filings all showing February 19, 2015, and no evidence supporting an earlier filing date.
- Norman raised several new arguments on appeal that were not presented below; the court treated those as waived and refused to consider them.
- The Fifth Circuit denied IFP, dismissed the appeal as frivolous, and warned that the dismissal counts as a strike under 28 U.S.C. § 1915(g).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / statute of limitations | Norman: filing was delayed by lack of access to a notary, so complaint should be considered timely | Defendant: limitations period expired; no evidence of earlier filing or tolling | Court: Plaintiff failed to create a genuine factual dispute; summary judgment proper for untimeliness |
| Burden on summary judgment re: limitations | Norman: disputed the filing date and factual issues | Defendant: established prescription, shifting burden to Norman to show exception | Court: Norman did not produce evidence to meet his burden; district court didn’t resolve disputed fact |
| Preservation of arguments on appeal | Norman: raised new arguments on appeal about timeliness and tolling | Defendant: appealed record governs; issues not raised below are waived | Court: New arguments waived and not considered |
| IFP / good-faith certification and sanctions | Norman: sought leave to proceed IFP and challenged certification | Defendant: opposed IFP given lack of arguable merit | Court: IFP denied; appeal frivolous; dismissal counts as a § 1915(g) strike and warning issued |
Key Cases Cited
- Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997) (standard for good-faith IFP appeals)
- Surratt v. McClarin, 851 F.3d 389 (5th Cir. 2017) (de novo review of summary judgment and view evidence for nonmovant)
- Smith v. Reg'l Transit Auth., 827 F.3d 412 (5th Cir. 2016) (Louisiana prescription applied to § 1983 actions)
- Bourdais v. New Orleans City, 485 F.3d 294 (5th Cir. 2007) (burden shift when movant proves limitations expired)
- Keelan v. Majesco Software, Inc., 407 F.3d 332 (5th Cir. 2005) (arguments not raised below are waived)
- Haines v. Kerner, 404 U.S. 519 (1972) (liberal construction of pro se pleadings)
- Yohey v. Collins, 985 F.2d 222 (5th Cir. 1993) (pro se litigants must brief arguments to preserve them)
- Howard v. King, 707 F.3d 215 (5th Cir. 1983) (standard for appeals lacking arguable legal merit)
- Coleman v. Tollefson, 135 S. Ct. 1759 (2015) (frivolous-dismissal counts as a strike under § 1915(g))
- Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996) (application of § 1915(g) strikes guidance)