     Case: 14-11339      Document: 00513322644         Page: 1    Date Filed: 12/28/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                  FILED
                                                                             December 28, 2015
                                      No. 14-11339
                                                                               Lyle W. Cayce
                                                                                    Clerk
TODD WAYNE SUMMERS,

                                                 Plaintiff-Appellant

v.

UNITED STATES FEDERAL BUREAU OF PRISONS, (BOP), JORGE
PARTIDZ, M.D., ROBERTO ACOSTA, HSA; BRIAN ALEXANDER, PA; A.
SINAVSKY, M.D.; JANE DOE, MDC Los Angeles; UNITED STATES OF
AMERICA,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:13-CV-138


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Todd Wayne Summers, federal prisoner # 11515-091, filed a complaint
in which he asserted a claim under the Federal Tort Claims Act (FTCA), as
well as claims under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).                   The action
concerned the medical treatment provided to Summers, which culminated in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 14-11339

colon surgery. The magistrate judge (MJ) dismissed Summers’s claims as
frivolous and denied his motion to proceed in forma pauperis (IFP) on appeal,
certifying that the appeal was not taken in good faith. By moving for IFP
status in this court, Summers is challenging the MJ’s certification. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      A review of Summers’s filings reveals no argument that the MJ erred in
dismissing his § 1983 and Bivens claims. Although pro se briefs are afforded
liberal construction, even pro se litigants must brief arguments in order to
preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). As
Summers fails to identify any error in the MJ’s analysis as to these claims, it
is the same as if he had not appealed these issues. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Summers challenges the district court’s determination that his FTCA
claim was time barred. “[W]here it is clear from the face of a complaint filed
in forma pauperis that the claims asserted are barred by the applicable statute
of limitations those claims are properly dismissed” as frivolous. Gartrell v.
Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). The limitations period for an FTCA
claim is, as relevant here, six months after the mailing of the denial by the
agency presented with the claim. See 28 U.S.C. § 2401(b).
      The BOP mailed its denial of Summers’s administrative tort claim on
January 29, 2013. Thus, in order to be timely, Summers was required to file
his FTCA claim in the district court on or before July 29, 2013. See § 2401.
      In determining that the FTCA claim was untimely the MJ looked to the
date that Summers’s complaint was received by the district court, August 9,
2013. Summers contends, however, that he deposited his complaint for mailing
on July 24, 2013, and that the FTCA claim was timely filed under the prison
mailbox rule. Pursuant to the prison mailbox rule, a pro se prisoner is deemed



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                                 No. 14-11339

to have filed a document in federal court when he deposits it in the prison mail
system. Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998).
      It cannot be said that it is “clear from the face of [the] complaint” that
Summers’s FTCA claim is barred by the applicable statute of limitations.
Gartrell, 981 F.2d at 256. Whether the facts ultimately establish a claim
against the United States under the FTCA is not a question to be answered at
this stage of the proceedings. See Howard v. King, 707 F.2d 215, 220-21 (5th
Cir. 1983).   Accordingly, Summers’s motion to proceed IFP on appeal is
granted, and the judgment is vacated with respect to the dismissal, as time
barred, of Summers’s FTCA claim. The FTCA claim is remanded for further
proceedings. The judgment is affirmed with respect to all other issues.
      IFP MOTION GRANTED; AFFIRMED IN PART, VACATED AND
REMANDED IN PART.




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