Opinion
Civil Action 22-cv-1351
05-21-2024
DAVID RAY BOSWELL #782811 v. MICHAEL JONES
JUDGE ELIZABETH E. FOOTE
REPORT AND RECOMMENDATION
MARK L. HORNSBY, U.S. MAGISTRATE JUDGE
Introduction
David Ray Boswell (“Plaintiff”), a self-represented inmate, filed this civil rights action against Shreveport police officer Michael Jones. Plaintiff asserts a claim of excessive force and possibly asserts claims of denial of medical care and false arrest. Before the court is Defendant Jones' Motion to Dismiss (Doc. 18) that challenges the claims based primarily on timeliness. For the reasons that follow, it is recommended that the motion to dismiss be granted.
The Allegations
Plaintiff alleged in his original complaint that on May 4, 2020 Sgt. Michael Jones took Plaintiff into a room at the police department and, while Plaintiff was in handcuffs, started beating and choking Plaintiff. Jones allegedly punched and choked Plaintiff while saying, “I trained that man.” Plaintiff speculates in his amended complaint (Doc. 7) that this was a reference to Shreveport police officer Robert Brice, whose home had been the scene of the crimes under investigation. Plaintiff also complained, “No medical attention was given.”
Plaintiff was directed to file an amended complaint to provide additional details about his claims. He asserted that Jones violated his rights under the Eighth Amendment on May 4, 2020 after Plaintiff was arrested and taken to the police department. Plaintiff repeated his claims that Jones took him into a room and, while Plaintiff was handcuffed, started beating and choking Plaintiff. Plaintiff alleged that he was “somehow” charged with resisting an officer to cover up the beating he received. Plaintiff stated, “I never resisted.”
Excessive Force
Congress did not provide a statute of limitations for claims brought under 42 U.S.C. § 1983. The Supreme Court has held that a forum state's general or residual statute of limitations for personal injury claims applies to Section 1983 claims. In Louisiana, that period is one year. La. Civ. Code art. 3492. Louisiana law also provides that actions that arise from damages sustained as a result of an act defined as a crime of violence are subject to a longer two-year limitations period. La. Civ. Code art. 3493.10. It has been argued that excessive force claims under Section 1983 should be governed by the two-year period, but the Fifth Circuit recently held that the one-year period is applicable to Section 1983 excessive force claims filed in Louisiana. Brown v. Pouncy, 93 F.4th 331 (5th Cir. 2024); Monroe v. Conner, 2024 WL 939735 (5th Cir. 2024).
“An excessive force claim generally accrues on the date when the force is inflicted.” Morrill v. City of Denton, 693 Fed.Appx. 304, 306 (5th Cir. 2017). Thus, when a plaintiff alleged that a police officer used excessive force in the course of an arrest, his Section 1983 claim for excessive force accrued on the date he alleged that he was subjected to the excessive force. Armstrong v. Serpas, 670 Fed.Appx. 851 (5th Cir. 2016).
Plaintiff alleged in his original complaint that he was subjected to excessive force on May 4, 2020. He attached to his amended complaint a booking report that indicates May 4, 2020 was the date of his arrest for burglary, resisting an officer, and a weapons charge. Thus, the claim accrued on that date, and Plaintiff had one year to file suit.
Plaintiff was incarcerated when he filed his pro se complaint, so he is entitled to the benefit of a mailbox rule that holds his complaint is filed as soon as he deposited it into the prison mail system. Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995). The earliest possible date Plaintiff could have tendered his complaint for mailing is May 17, 2022, the day that he signed and dated it. The clerk of court stamped it received two days later on May 19, 2022. Plaintiff did not file his complaint until more than two years after the excessive force claim accrued, so the claim is barred as untimely.
The possibility of tolling will be discussed briefly. A prisoner may not bring an action “with respect to prison conditions” under Section 1983 until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). The pendency of a properly filed administrative grievance will act to toll or suspend the running of the limitations period for a prisoner's claim. Harris v. Hegmann, 198 F.3d 153, 158-59 (5th Cir. 1999).
Tolling does not apply because (1) this is not a prison conditions claim and (2) Plaintiff did not file a grievance. Plaintiff does not allege that he was an inmate or in a corrections facility when the incident occurred. Rather, it appears that he was a new arrestee, and the incident occurred at the police station. This would bring his claim outside the scope of a prison conditions complaint, even under the broad reading of that language that is required. Plaintiff also stated on page two of his original complaint that he did not file a grievance based on these events. Thus, there is no basis to find that the limitations period was tolled by a properly filed grievance.
Medical Care
Plaintiff made brief allegations in his complaint and amended complaint that he was not given medical attention after Jones allegedly beat him. To the extent this was intended to assert a separate claim, it accrued under federal law when Plaintiff knew or had reason to know that he had been hurt and who inflicted the injury. Turnage v. Britton, 29 F.4th 232, 244 (5th Cir. 2022). Plaintiff was aware of the relevant facts and the identity of Jones, the only defendant, on the day of the alleged events. He waited more than two years to file his complaint, so any such claims are untimely.
False Arrest
Plaintiff alleged that he was charged with resisting an officer to cover up the beating inflicted by Jones. Plaintiff denied that he ever resisted. A claim for false arrest when the arrest is supported by a warrant accrues at the time of the arrest, but for a warrantless arrest the claim accrues when a judge or grand jury first makes a finding of probable cause. Bradley v. Sheriff's Department St. Landry Parish, 958 F.3d 387, 391 (5th Cir. 2020); Garcia v. San Antonio, 784 Fed.Appx. 229, 232 (5th Cir. 2019).
Jones points out that Plaintiff was arrested on May 4, 2020, but it is unclear from Plaintiff's pleadings whether he was arrested on a warrant. His amended complaint later alleged that he had “now been incarcerated at CCC for 28 months with no end in sight.”
Jones argues that state law requires a probable cause determination to be made by a judge within 48 hours of a warrantless arrest. Plaintiff's allegation of continued custody therefore indicates that such a finding was made in early May 2020, soon after the arrest. Plaintiff waited more than two years afterward to file his complaint, so any false arrest claim would be untimely.
Jones' motion to dismiss was noticed for briefing, but Plaintiff did not file any response or otherwise challenge the suggestion that a judge made a probable cause finding in May 2020. It is presumed that the state court system followed the applicable procedures. Given the lack of any suggestion by Plaintiff to the contrary, any claim for false arrest should be dismissed as untimely.
Jones submits evidence that is outside the allegations in the complaint, which generally form the limits of what may be considered in a Rule 12(b)(6) contest. The state court criminal records indicate that Plaintiff was simultaneously charged with several other crimes. A jury found Plaintiff guilty of eight counts of burglary, one count of illegal use of weapons, and one count of attempted aggravated burglary. The prosecutor dismissed the resisting charge on the day Plaintiff was sentenced for those crimes.
Other Claims
Plaintiff filed his complaint on a form designated for the assertion of civil rights claims under 42 U.S.C. § 1983. He specifically invoked the Eighth Amendment and did not invoke any state law claims. Jones' motion raised and challenged the claims that he believed Plaintiff potentially asserted in the complaint. Plaintiff did not respond and attempt to identify any other claims. In these circumstances, the court finds that Plaintiff has not asserted any state law claims or federal claims other than those discussed above, so no further assessment or discussion is warranted.
Accordingly, It is recommended that Michael Jones' Motion to Dismiss (Doc. 18) be granted and that all claims asserted in Plaintiff's complaint be dismissed as untimely.
Objections
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), parties aggrieved by this recommendation have fourteen (14) days from service of this report and recommendation to file specific, written objections with the Clerk of Court, unless an extension of time is granted under Fed.R.Civ.P. 6(b). A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. Counsel are directed to furnish a courtesy copy of any objections or responses to the District Judge at the time of filing.
A party's failure to file written objections to the proposed findings, conclusions and recommendation set forth above, within 14 days after being served with a copy, shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc).
THUS DONE AND SIGNED in Shreveport, Louisiana, this 21st day of May, 2024.