Opinion
ACTION NO. 4:01-CV-135-Y
December 20, 2001
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pending before the Court is the Motion for Summary Judgment, filed on March 23, 2001 by defendant Ruben A. Puente ("Puente"). Puente's motion alleges that Plaintiff's claims are barred by limitations, that Plaintiff has failed to allege any cognizable federal claims against Puente, and that Puente is entitled to qualified immunity. Plaintiff Randy Childers ("Childers") filed a response in opposition to the motion on April 12, and Puente filed a reply to Childers's response on April 27. After careful consideration of the briefs submitted by the parties, the evidence highlighted therein, and the applicable law, the Court concludes that Puente's motion should be granted.
I. Facts
Childers, a former police officer for the City of Arlington, has sued Puente, the City of Arlington, and Arlington police officer Nathaniel Harder ("Harder")for claims arising out of his November 5, 1997 arrest by Harder and Corporal West ("West") in the Fantasy Ranch nightclub parking lot. Childers was arrested for unlawfully carrying a firearm without a permit to a place where alcoholic beverages are served. Harder and West discovered the gun while searching Childers's vehicle. Childers claims that because he did not consent to the search, the search was illegal. It is undisputed that Puente was not involved in the arrest. Childers was no-billed by the grand jury on February 25, 1998 regarding the incident.
During the spring of 1998, after Childers had been no-billed, Childers went to the Arlington Police Department. The facts are disputed regarding what subsequently occurred. Childers alleges that he went to the internal affairs division, stated that he wanted to file a complaint, and was referred to Puente. Childers did not file a complaint at that time, but asserts that in a subsequent phone conversation he informed Puente that he intended to file a complaint against Harder and West. Childers further alleges that Puente threatened to resubmit Childers's November 5 arrest to the grand jury if he proceeded to file a complaint.
Puente alleges that Childers arrived at the police station without an appointment and asked the front-desk duty officer for the person in charge of internal affairs. Puente was on duty for internal affairs, so he spoke with Childers. Puente and Childers exchanged pleasantries and engaged in informal conversation regarding, among other topics, a shared work experience when Childers was an Arlington police officer. Later in the conversation Childers told Puente his version of the November 5 arrest. Puente claims that Childers did not indicate he wanted to file a complaint, nor did he contend that Harder and West engaged in misconduct. Childers refused Puente's offer to have Harder and West's sergeant contact Childers. Puente avers that he had no further contact with Childers until the filing of this lawsuit. Puente retired from the police force in August 1998.
II. Summary Judgment Standard
Puente is entitled to summary judgment if he demonstrates that "there is no genuine issue as to any material fact and that [he] is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). "To determine whether an issue of material fact exists, the Court must consult the applicable substantive law to ascertain what fact issues are material to the disposition of the case." Lavespere v. Niagara Mach. Tool Works, 910 F.2d 167, 178 (5th Cir. 1990). "All reasonable factual inferences must be drawn in favor of the nonmovant." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "The court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Id. at 249. "Where movant bears the burden of proof on a claim or defense, he must establish all elements of the claim or defense to prevail on summary judgment." Western Fire Ins. Co. v. Copeland, 651 F. Supp. 1051, 1053 (S.D. Miss. 1987), aff'd, 824 F.2d 970 (5th Cir. 1987).
When the moving party has carried his summary-judgment burden, the respondent "must do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). The respondent must produce evidence, not merely argument, in response to a movant's properly supported motion for summary judgment. See Foval v. First Nat'l Bank of Commerce, 841 F.2d 126, 129 (5th Cir. 1988); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547. 549 (5th Cir. 1987).
III. Analysis
A. Statute of Limitations for § 1983 Claims
The statute of limitations for a suit brought under 42 U.S.C, § 1983 is determined by the general statute of limitations governing claims for personal injuries in the forum state. Pete v. Metcalfe, 8 F.3d 214, 217 (5th Cir. 1993). In Texas, a two-year statute of limitations applies to personal-injury claims. TEX. CIV. PRAC. REM. CODE ANN. § 16.003(a). A § 1983 claim accrues when a plaintiff "becomes aware that he has suffered an injury or has sufficient information to know that he has been injured." Brummet v. Camble, 946 F.2d 1178, 94 (5th Cir. 1991); Helton v. Clements, 832 F.2d 332, 334-35 (5th Cir. 1998). Childers, a former police officer, was fully aware that if he had allegedly suffered a constitutional injury, it was on the day of his arrest. ( See P.'s App. at 1-2: "On November 5, 1997. . . . [d]espite my refusal [to consent to the search] the police officers eventually opened up my vehicle and began searching same.") Therefore, in this case, the applicable two-year limitations period commenced on November 6, 1997, and expired two years thereafter on or about November 5, 1999. This lawsuit was filed on November 3, 2000, more than eleven months after the limitations period expired. Thus, unless the limitations period was tolled, Childers's claims are barred by limitations.
B. Duress as a Tolling Mechanism
Childers argues that the limitations period for this lawsuit was tolled because he was under duress. Childers asserts that he experienced duress due to a continuing threat of criminal prosecution, and that the duress continued until November 6, 2001, when the statute of limitations for criminal prosecution regarding his November 5, 1997 arrest expired. (P.'s App. at 1-7.) Childers alleges that Puente's threat of prosecution prevented him from filing suit until after that limitations period expired:
"Lt. Puente called me back and I believe it was Friday, March 20, 1998. . . . [He] told me if I filed a complaint against the arresting officers, the charge would be resubmitted to the Grand Jury for prosecution. . . . This threat really startled and frightened me and I took it in no uncertain words, if I filed a formal complaint Lt. Puente could have the charges resubmitted to . . . the grand jury for prosecution."
(P.'s Aff. at 4-5.)
Texas's tolling doctrine of duress is set forth in Pierce v. Estate of Harry Havelah, 428 S.W.2d 422 (Tex.Civ.App.-Tyler 1968, writ ref'd n.r.e.), and Whatley v. Nat'l Bank of Commerce, 555 S.W.2d 500, 503-04 (Tex.Civ.App.-Dallas 1977, no writ). This case is distinguishable from Pierce and Whatley, however, because in those cases the cause of action was based on the alleged duress; here, Childers asserts a § 1983 action alleging that his arrest was unconstitutional but does not seek damages for Puente's alleged duress. See Pierce, 428 S.W.2d at 423; Whatley, 555 S.W.2d at 503. At least one Texas court has refused to extend the tolling doctrine of duress that was recognized in Pierce to a claim that is not based on the alleged duress. Slater v. Nat'l Med. Enters., Inc., 962 S.W.2d 228, 2351 (Tex.App.-Fort Worth 1998, no pet.) ("We decline to apply the tolling doctrine of duress to [a health-care liability claim brought under] article 4590 i."). Therefore, because the cause of action alleged here is not based on the duress itself, this Court questions whether Texas courts would apply the tolling doctrine to this case.
Even assuming that this tolling doctrine applies, however, Childers has failed to prove that duress prevented him from filing his case within the limitations period. In order to toll the statute of limitations based on duress, Childers must meet an objective standard:." [I]n a situation where a person attempts to excuse himself [because of duress] from the operation of the statute of limitations, we think his conduct should be tested by the objective standard of an ordinary prudent person. . . . under the same or similar circumstances." Pierce, 428 S.W.2d. at 427-28. The burden is thus on Childers to prove "that the alleged continuing duress was such that it would have, in reasonable probability, prevented a person of ordinary prudence from exercising his own free will and judgment in filing suit prior to [the expiration of the limitations period]. A fact question would thus be presented unless the evidence is such that the minds of reasonable men would not differ." Id. at 428. Once the duress is removed, however, the statute of limitations begins to run. Whatley, 555 S.W.2d at 503-04. Therefore, Childers has the burden to show that his alleged duress would have, in reasonable probability, prevented a person of ordinary prudence from filing suit prior to the expiration of the two-year statute of limitations.
C. Childers Has Failed to Prove that the Statute of Limitations was Tolled
Applying an objective standard to this case, Childers has failed to present evidence demonstrating that he was under continuing duress that would have prevented a person of ordinary prudence from filing suit before the expiration of the limitations period. Childers claims that Puente threatened to resubmit his arrest to the grand jury and that he believed Puente had the power and authority to follow through with his threat; as a result, Childers contends that he therefore was intimidated from filing his suit until after the statute of limitations for his alleged criminal violation expired. (P.'s App. at 5-6.) Fatal to Childers's argument, however, is the fact that Puente retired in August 1998. Childers's claim of duress is based entirely upon an alleged threat by Puente. Even if Childers reasonably considered himself to be under duress as a result of Puente's alleged threat, that duress ceased upon Puente's retirement. At that time, Puente no longer occupied an official position of authority such that he could resubmit Childers's arrest to the grand jury, and Childers therefore has no basis to claim that duress prevented him from filing suit after Puente's retirement. Childers, as the party seeking the benefit of the tolling doctrine of duress, has the burden to prove the doctrine applies and when the duress was removed. See Whatley, 555 S.W.2d at 502 ("[W]ith respect to Whatley's actions based on duress, we affirm because he had the burden to show by summary judgment evidence when the duress was removed."). It is clear that any duress Childers may have suffered was removed when Puente retired in August 1998. Because Childers failed to file suit for more than two years after that date, his claims are barred by the statute of limitations.
IV. Conclusion
It is, therefore, ORDERED that Puente's Motion for Summary Judgment [document number 5-1] is hereby GRANTED.