IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40338 Conference Calendar

ROBERT GONZALEZ, JR.,

Plaintiff-Appellant,

versus

THOMAS PRASIFKA, Warden,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-01-CV-562 -------------------- October 29, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Robert Gonzalez, Jr., Texas prisoner # 761485, appeals the

district court’s dismissal of his

action as

barred by the applicable two-year statute of limitations and for

failure to exhaust his administrative remedies. He argues that

the limitations period should be tolled pursuant to TEXAS REV. CIV.

STAT. ANN. art. 5535 because he is in prison. Although Texas

law formerly considered imprisonment to be a disability which

tolled the running of the statute of limitations, the former

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-40338 -2-

Article 5535 was repealed effective September 1, 1987, and the

two-year limitations period now begins to run when the cause of

action accrues. See TEX. CIV PRAC. & REM CODE ANN. § 16.003(a)

(West 1999); Moore v. McDonald,

(5th Cir.

1994). Therefore, the magistrate judge did not err in dismissing

Gonzalez’s

action as barred by the applicable

two-year statute of limitations. See Moore,

.

Gonzalez argues that the magistrate judge erred in

dismissing his action for failure to exhaust his administrative

remedies as

does not require exhaustion.

Exhaustion of administrative remedies is required by 42 U.S.C.

§ 1997e(a). Further, a state prisoner’s mixed petition for both

monetary and injunctive relief is subject to the exhaustion

requirement. See Wright v. Hollingsworth,

(5th Cir. 2001). Therefore, the magistrate judge did not err in

dismissing Gonzalez’s action on the alternative ground that he

failed to exhaust his administrative remedies.

Gonzalez’s appeal is without arguable merit and is

frivolous. See Howard v. King,

(5th Cir.

1983). Because the appeal is frivolous, it is DISMISSED.

See 5TH CIR. R. 42.2. Gonzalez is advised that the dismissal of

this appeal counts as a strike under

(g).

Gonzalez is also advised that if he accumulates three strikes

under

(g), he may not proceed in forma pauperis

in any civil action or appeal while he is incarcerated or No. 02-40338 -3-

detained in any facility unless he is under imminent danger of

serious physical injury.

APPEAL DISMISSED; SANCTION WARNING ISSUED.