Opinion
No 3:01 CV-26-44-P
December 13, 2002
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 are as follows:
I. BACKGROUND
A. Nature of the Case: This is a civil rights complaint pursuant to 42 U.S.C. § 1983.
B. Parties: Plaintiff is currently incarcerated in the Texas prison system. He names Janie Cockrell, Director of Texas Department of Criminal Justice — Institutional Division (TDCJ.ID); Sandie Walker, Parole Commissioner; and Leticia Walker, District Parole Officer, as defendants. (See Complaint (Compl. at 3.)
C. Statement of the Case: Plaintiff sues Janie Cockrell for a "procedural due process violation." (Compl. at 3.) He sues Sandie Walker and Leticia Walker for unconstitutional parole procedures and deprivation of a liberty interest. (Id.) Plaintiff essentially complains that he was not released on parole to his wife and children because of a prior sex offense. (See Statement of Claim attached to Compl. (Statement)) The events that led to the instant lawsuit commenced in October 1998 and continued through February 14, 2000. (See id.; Answers to Magistrate Judge's Questionnaire (MJQ); Answer to Question 2 of Second MJQ.)
Plaintiff's answers to the questions posed by the Court constitute an amendment to the filed complaint. See Macias v. Raul A. (Unknown), Badge No. 153,23 F.3d 94, 97 (5th Cir. 1994).
Plaintiff was convicted of burglary of a building on June 9, 1994, and sentenced to twenty-five years imprisonment. (Statement at 1.) In October 1998, Sandie Walker met with plaintiffs wife and children in anticipation of plaintiffs parole. (Statement at 3.) Though she was concerned about plaintiffs prior conviction for a sex offense, Ms. Walker stated that she felt it safe to grant plaintiff parole to his family. (Id.) That same day, Ms. Walker informed plaintiff that she was "going to vote that plaintiff be paroled to his wife and children." (Id.) In mid-November 1998, plaintiff was granted parole and transferred to a pre-release unit. (Id.; Answer to Question 2 of MJQ.) Upon his transfer, he called his wife and learned that a parole officer in Fort Worth would not accept the parole plan or allow plaintiff to return home as long as the children were under seventeen years of age. (Statement at 3; Answer to Question 2 of MJQ.) Sandie Walker was no longer involved at that point. (See Answer to Question 2 of MJQ.)
On March 11, 1999, plaintiff was released on parole subject to sex offender restrictions then in effect. (Statement at 1-2.) Leticia Walker began supervising plaintiffs parole in October 1999. (See Answer to Question 2 of Second MJQ.) Plaintiff claims that she unconstitutionally deprived him of contact with his children, and that he could see his wife only when the children were not present. (See Answer to Question 1 of Second MJQ.) Plaintiff remained subject to these conditions of parole until his re-incarceration on February 14, 2000. (See id.; Answer to Question 1 of MJQ.)
No process has been issued in this case.
II. PRELIMINARY SCREENING
The Court has permitted plaintiff to proceed informa pauperis. His complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2). As a prisoner seeking redress from an officer or employee of a governmental entity, plaintiffs complaint is also subject to preliminary screening pursuant to 28 U.S.C. § 1915A regardless of whether he proceeds in forma pauperis. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal if the Court finds the complaint 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.
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. SECTION 1983 RELIEF
Plaintiff seeks relief under 42 U.S.C. § 1983 against the current Director of the TDCJ-ID, a Parole Commissioner, and a District Parole Officer for events related to his parole granted in March 1999. Section 1983 "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.
A. Respondeat Superior
Plaintiff seeks to hold Janie Cockrell liable as the Director of TDCJ-ID. (See Statement of Claim at 1-2.) It is well-settled that a plaintiff cannot prevail under § 1983 on a theory of respondeat superior. Monell v. Department of Soc. Servs., 436 U.S. 658, 691 (1978); Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.). Plaintiff has alleged no personal involvement on Ms. Cockrell's part. He has alleged no specific incident or causative link between the allegations against the Walkers and conduct on the part of Cockrell. Plaintiff provides no evidence of a policy that impinged on his constitutional rights. He has failed to articulate any facts, moreover, which would demonstrate deliberate indifference on the part of Cockrell. Moreover, Cockrell did not become Director of TDCJ-ID until August 1, 2001. The events leading to this lawsuit ended well before she became Director of TDCJ-ID. She could thus have no personal involvement in the events leading up to this action in her capacity as Director. The claims against her should be dismissed.
B. Statute of Limitations
Plaintiff has alleged sufficient personal involvement by the Walker defendants to allow this action to proceed against them. However, the timing of their alleged personal involvement necessitates examination of the applicable statute of limitations. The Court "may raise the defense of limitations sua sponte." Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). "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 28 U.S.C. § 1915(e)(2)(B). Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). In such circumstances, courts may also dismiss the claims under 28 U.S.C. § 1915A, when it applies. Gonzales v. Wyatt, 157 F.3d 1016, 1019-21 (5th Cir. 1998).
"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, 122 S.Ct. 53 (2001). In view of Texas' two-year statute of limitations for personal injury claims, plaintiff had two years from the date his claims accrued to file suit. 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, 157 F.3d at 1020.
The statute of limitations is subject to equitable tolling. See Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998) (stating that "[b]ecause the Texas statute of limitations is borrowed in § 1983 cases, Texas' equitable tolling principles also control"). 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." Gonzales, 157 F.3d at 1020.
1. Claims Against Sandie Walker
Plaintiff sues Sandie Walker for her role in delaying his parole to March 1999 and his inability to be released to his family. (See Statement of Claim at 2-4.) Her only personal involvement in the events that led to this action relates to a telephone call and subsequent interview in October 1998. (See id.; Answer to Question 2 of MJQ.) She had no personal involvement after plaintiff was transferred to a pre-release unit in November 1998. (See Answer to Question 2 of MJQ.) Consequently, the statute of limitations would have run by December 2001, when plaintiff filed this action. Nothing indicates that the limitations period should be tolled. Nothing indicates that equitable tolling is warranted under Texas law. Plaintiffs claims against Sandie Walker should be dismissed as frivolous under 28 U.S.C. § l915(e)(2) and 1915A for the failure of plaintiff to file them within the statutory period of limitations.
2. Claims Against Leticia Walker
Plaintiff asserts continuing violations of his constitutional rights, including due process, the First and Eighth Amendments, and equal protection, from the date of his parole in March 1999 through the date he was re-incarcerated in February 2000. (See Statement at 4-5.) He claims that the conditions of his parole prevented him from being around his children, subjected him to public exposure as a sex offender, and restricted his participation and attendance at church. (Id.) He further claims that Leticia Walker deprived him of contact with his family by continuing to enforce unconstitutional conditions of parole from October 1999 through February 14, 2000. (See Answer to Questions 1-2 of Second MJQ.)
When there is a continuing violation, "the two year limitations period begins to run at the end of [the] continuing violation." Dews v. Town of Sunnyvale, 109 F. Supp.2d 526, 563 (N.D. Tex. 2000); see also, Perez v. Laredo Junior College, 706 F.2d 731, 733-34 (5th Cir. 1983) (recognizing that continuing violations may dictate when a statute of limitations commences in a § 1983 action); Jackson v. Galan, 868 F.2d 165, 168 (5th Cir. 1989) (same). Because plaintiff alleges continuing violations, the limitations period did not begin to run until the end of the alleged violations in February 2000. Thus, his claims against Leticia Walker appear to be timely. Furthermore, plaintiff has made sufficient allegations against Leticia Walker under 42 U.S.C. § 1983 to survive summary dismissal. Consequently, this action should proceed against her.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court summarily DISMISS plaintiffs complaint against defendants Janie Cockrell and Sandie Walker with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b).
The Court further recommends that plaintiffs complaint against Leticia Walker proceed and that process issue as to her.