Opinion
No. 3:02-CV-2160-N, (Consolidated with No. 3:02-CV-2163-N, No. 3:02-CV-2164-N, No. 3:02-CV-2165-N, No. 3:02-CV-2166-N)
August 27, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
I. BACKGROUND
Plaintiff, a resident of Dallas, Texas, brings suit against the Texas Attorney General's Office; Mr. John Coryn; the Texas Workers Compensation Commission; the Texas Workforce Commission; the Crime Victims Rights Divisions; Steven Michael Ellis, Vice President of Kwik Industries; two attorneys for Kwik Industries, John B. Larrimer and John H. Cochran; the Farmers Branch Police Department; Chief Faucett, Farmers Branch Police Department; Detective J.L. Baker; the Dallas District Attorney's Office; Bill Hill; Toby Shook; Sharon Arlington; Lee De'Masi; and J. Kem Carlson. The five complaints filed in these consolidated cases set forth similar facts and claims against the various defendants. Plaintiff essentially claims that defendants conspired to, and did, violate his constitutional rights between 1997 and 1999. He alleges no facts regarding acts or omissions of defendants that occurred after August 1999. No process has been issued in this case.
II. PRELIMINARY SCREENING
Because plaintiff is proceeding in forma pauperis, his complaints are subject to screening under 28 U.S.C. § 1915(e)(2). This statute provides for sua sponte dismissal of a complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. See id.A complaint is frivolous when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Id. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28. A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp.2d 768, 769 (N.D.Tex. 2000).
III. STATUTE OF LIMITATIONS
Plaintiffs claims appear to arise under 42 U.S.C. § 1983. That statute "provides a federal cause of action for the deprivation, under color of law, of a citizen's `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). It "afford[s] redress for violations of federal statutes, as well as of constitutional norms." Id.
In this instance, the alleged acts upon which the instant litigation is based occurred between 1997 and August 1999. The lengthy delay between the date of the alleged acts and the date plaintiff filed the instant action in October 2002 prompts consideration of the timeliness of the instant action. "Where 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," pursuant to § 1915(e)(2)(B). Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). The Court "may raise the defense of limitations sua sponte." Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
"The statute of limitations for a suit brought under § 1983 is determined by the general statute of limitations governing personal injuries in the forum state." Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir.), cert, denied, 534 U.S. 820 (2001). In view of Texas' two-year statute of limitations for personal injury claims, plaintiff "had two years to file suit from the date" that his § 1983 claims accrued. Id.; see also, Hatchet v. Nettles, 201 F.3d 651, 653 (5th Cir. 2000).
Accrual of a § 1983 claim is governed by federal law:
Under federal law, the [limitations] period begins to run `the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.' A plaintiffs awareness encompasses two elements: `(1) The existence of the injury; and (2) causation, that is, the connection between the injury and the defendant's actions.' A plaintiff need not know that she has a legal cause of action; she need know only the facts that would ultimately support a claim. Actual knowledge is not required `if the circumstances would lead a reasonable person to investigate further.'Piotrowski, 237 F.3d at 576 (citations omitted). In other words, "[t]he cause of action accrues, so that the statutory period begins to run, when the plaintiff knows or has reason to know of the injury which is the basis of the action." Gonzales v. Wyatt, 157 F.3d 1016, 1020 (5th Cir. 1998).
In this instance, plaintiffs claims fall well outside the applicable statutes of limitation. Plaintiffs complaints establish that he knew the facts that form the basis for his conspiracy claims no later than August 1999. However, plaintiff did not file the instant suit until October 2002 — more than three years later. It thus appears that his § 1983 causes of action are time-barred. The Court may therefore summarily dismiss these claims as untimely. See Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993) (holding that court may summarily dismiss the complaint filed in forma pauperis, if it is "clear" that claims asserted are barred by limitations).
If not tolled, limitations generally continue "to run until the suit is commenced by the filing of the plaintiffs complaint in the clerk's office." Gonzaks v. Wyatt, 157 F.3d 1016, 1020 (5th Cir. 1998). Plaintiff filed the complaint after the applicable statutes of limitations had expired. Nothing indicates that the limitations periods should be tolled. Plaintiff asserts no basis for equitable tolling under Texas law.' Furthermore, nothing indicates that tolling is warranted. Consequently, plaintiffs claims should be dismissed as frivolous under 28 U.S.C. § 1915 (e)(2) for the failure of plaintiff to file them within the statutory periods of limitations.
"Because the Texas statute of limitations is borrowed in § 1983 cases, Texas' equitable tolling principles also control." Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998).
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the Court DISMISS plaintiffs claims with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure of plaintiff to file them within the statutory period of limitations.