Opinion
No. 3:03-CV-0021-H
September 2, 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
On January 3, 2003, plaintiff, a state inmate currently incarcerated in the Texas prison system, sought leave of court to file "late claims." ( See Mot. For Permission to File Late Claims.) On January 24, 2003, the Court granted plaintiff permission to proceed in forma pauperis in this action. ( See Filing Fee Order.) In April 2003, plaintiff filed a lengthy complaint under 42 U.S.C. § 1983. ( See Compl. with attached pages and exhibits.) He asserts claims of excessive force related to his arrest on November 22, 1997. ( Id.) He also asserts numerous claims relating to the denial of medical care during late 1997 and early 1998 while incarcerated in Dallas County Jail. ( Id.) He sues fourteen defendants for their involvement during the relevant time periods. ( Id.) No process has been issued in this case.
II. PRELIMINARY SCREENING
Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of a governmental entity, plaintiffs complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Because he is proceeding in forma pauperis, plaintiffs complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of the 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
Plaintiff has filed his action on a standard form used in actions brought pursuant to 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 in late 1997 and early 1998. The lengthy delay between the dates of the alleged acts and omissions and the date plaintiff filed the instant action in 2003 prompts consideration of the timeliness of the instant action. Plaintiff himself recognizes the potential limitations bar as shown by his motion for permission to file late claims. "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). In such circumstances, courts may also dismiss the claims under § 1915 A when it applies. Gonzales v. Wyatt, 157 F.3d 1016, 1019-21 (5th Cir. 1998). The Court "may raise the defense of limitations sua sponte." Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
Whether the Court considers the instant action filed when plaintiff filed his motion for permission to file late claims (January 2003) or when he actually filed the complaint (April 2003) makes no difference to the resolution of this action. The Court thus generically refers to the filing as occurring in 2003.
"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 complaint establishes that he knew the facts that form the basis for his claims in late 1997 and early 1998 when the alleged acts and omissions were allegedly occurring. However, plaintiff did not file the instant suit until approximately five years later, in January 2003. 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).
IV. TOLLING
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 v. Wyatt, 157 F.3d 1016, 1020 (5th Cir. 1998). Plaintiff filed the complaint after the applicable statutes of limitations had expired. He attempts to excuse the untimeliness on the following grounds:
I am not a lawyer and I had no access to professional legal counsel. During the statutory period for filing claimant was sentenced to drug treatment [and] has spent more than two years in drug treatment. Claimant is now incarcerated in Texas Department of Criminal Justice. Claimant has learned how to access the law library and learn his rights.
These excuses do not suffice to toll the limitations period. None of the proffered excuses provide a basis for equitable tolling under Texas or federal law. Under Texas law, imprisonment is no longer a "disability that toll[s] the running of the limitations period." Slack v. Carpenter, 7 F.3d 418, 419 (5th Cir. 1993). Furthermore, Texas courts have not extended equitable tolling principles to pro se litigants for their ignorance of the law. Nor have they found being in "drug treatment" sufficient to toll a statute 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). "[W]hen state statutes of limitation are borrowed, state tolling principles are to be the `primary guide' of the federal court. The federal court may disregard the state tolling rule only if it is inconsistent with federal policy." See FDIC v. Dawson, 4 F.3d 1303, 1309 (5th Cir. 1993) (citations omitted).
Even were the Court to find that his drug treatment prevented him from filing his lawsuit and that Texas would recognize such prevention as a basis for equitable tolling, the two years credit resulting from such tolling does not make the instant action timely.
In addition, nothing in federal law supports tolling the limitations period. Under federal law, neither ignorance of law nor lack of counsel qualifies a litigant for equitable tolling. Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000). Further, federal law requires that litigants diligently pursue their actions before equitable tolling becomes available. See Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999). Plaintiff here waited five years to file the instant action. He shows nothing that prevented him from timely filing this action. "[E]quity is not intended for those who sleep on their rights." Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989).
As under Texas law, even if the Court were to find that his drug treatment prevented plaintiff from filing his lawsuit and that federal law would recognize such prevention as a basis for equitable tolling, the two years credit resulting from such tolling does not make the instant action timely.
Plaintiff presents nothing which indicates that equitable tolling is warranted. Consequently, his claims should be dismissed as frivolous under 28 U.S.C. § 1915 (e)(2) and 1915A for his failure to file them within the statutory periods of limitations.
V. 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) and 1915A(b) for failure of plaintiff to file them within the statutory period of limitations. Such dismissal will count as a "strike" or "prior occasion" within the meaning 28 U.S.C. § 1915(g).
Section 1915(g), which is commonly known as the "three-strikes" provision, provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.