Opinion
3:04-CV-0191-K
February 10, 2004
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 District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a civil rights complaint brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is currently confined at the Coffield Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Tennessee Colony, Texas. Defendants are Rockwall Police Officer Havens and two unidentified police officers, the first one from the Rockwall Police Department and the second one from the Rowlett's Police Department. The Magistrate Judge has not issued process in this case.
Statement of Case: The complaint alleges that on January 2, 2002, Defendants used excessive force during the course of his arrest by forcefully opening his mouth although Plaintiff had previously informed them that he had recently undergone surgery for a broken a jaw, which prevented him from opening his mouth due to wiring installed his mouth during the surgery. Following the accident, Plaintiff was informed by the emergency room doctors that his mouth "would have to be rewired and would have to remain in wire for four to eight weeks and that he would then be required to take a course of physical therapy for another four to ten week period in order to regain full use of his mouth." (Complaint at 4 and attachment to page 4). Plaintiff requests compensatory damages.
Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). "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." Gonzales v. Wyatt, 157 F.3d 1016, 1019-1020 (5th Cir. 1998).
In Texas, § 1983 actions are governed by the two-year personal injury limitation period. Owens v. Okure, 488 U.S. 235, 249-50 (1989); Piotrowski v. City of Houston, 51 F.3d 512, 514 n. 5 (5th Cir. 1995); Tex. Civ. Prac. Rem. Code Ann. § 16.003(a) (Vernon Supp. 2004). While state law is used in determining which statute of limitations applies, it is federal law that establishes as the time of accrual the point "when the plaintiff knows or has reason to know of the injury which is the basis of the action." Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993).
The excessive force incident which is the basis for the excessive-force claim at issue in the complaint occurred on January 2, 2002. Plaintiff does not allege that as of that date he did not know of the injury that is the basis of his claims or that, if not tolled, the limitation period did not begin to run on that date. (Complaint at 4). It is clear, therefore, that the limitation period began to run on January 3, 2002, and expired two years later on January 2, 2004. Therefore, even if Plaintiff's complaint is deemed filed as early as January 15, 2004, the date on which he signed the same and most probably handed it to prison officials for filing, the complaint is time barred. See Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995) (relying onHouston v. Lack, 487 U.S. 266 (1988), to hold that a pro se prisoner litigant's section 1983 complaint is filed as soon as the pleading is deposited into the prison mail system). As such the complaint should be dismissed with prejudice as frivolous. RECOMMENDATION:
To the extent Plaintiff seeks to argue that the statute of limitations should be tolled because he is presently incarcerated, his claim is meritless. A federal court must apply state tolling provisions unless Congress has specifically directed otherwise. Gonzales. 157 F.3d at 1020 (applying state tolling provisions in a § 1983 action). Under Texas law, imprisonment does not act to toll the statute of limitations. Id.
For the foregoing reasons, it is recommended that Plaintiffs complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(b)(i).
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.