BRUCE MILLER, PLAINTIFF-APPELLANT,
v.
N. S. SMITH, INDIVIDUALLY AND IN HIS CAPACITY AS MEMBER OF DALLAS POLICE DEPARTMENT, ET AL., DEFENDANTS-APPELLEES
BRUCE MILLER, PLAINTIFF-APPELLANT,
N. S. SMITH, INDIVIDUALLY AND IN HIS CAPACITY AS MEMBER OF DALLAS POLICE DEPARTMENT, ET AL., DEFENDANTS-APPELLEES
625 F.2d 43
Court of Appeals for the Fifth Circuit (1980)
Positive Treatment
Cited by 16 cases
Opinion of the Court
PER CURIAM:
In our opinion in this case, 615 F. 2d 1037 (1980), the majority held that the plaintiff was entitled to invoke the tolling provisions of the Texas state statutes, Vernon’s Ann. Tex.Civ.St. arts. 5526, 5535, with reference to the time which elapsed while he was in prison' only as to such part of that time as access to the federal courts was not freely available to state prisoners. We remanded the case to the District Court for findings in that regard.
Since this opinion was rendered on April 21, 1980, the Supreme Court, on May 19, 1980, decided Board of Regents of the University of the State of New York, Et Al. v. Tomanio,-U.S.-, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980).
We are now of the opinion that under the teachings of Tomanio the prisoner was entitled to the benefit of a Texas tolling statute according to its express terms.
Accordingly, the petition for rehearing is GRANTED and the decision of the District Court dismissing the petition is reversed.
The case is remanded for further proceedings.
REVERSED AND REMANDED.
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Major v. Ariz. State Prison, 642 F.2d 311 (9th Cir. 1981)
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bd. of Regents of the Univ. of the State of N.Y. v. Tomanio, 446 U.S. 478 (U.S. 1980)
- Miller v. Smith, 615 F.2d 1037 (5th Cir. 1980)