Opinion
No. 3:03-CV-2627-P.
April 29, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. FACTUAL BACKGROUND
Plaintiff alleges Defendants violated his civil rights under 42 U.S.C. § 1983. Plaintiff states that on February 24, 2000, he was found not guilty of indecency with a child in cause number F99-02507. He states that on February 21, 2000, the Dallas County District Attorney dismissed charges of indecency with a child in cause number F99-31578. Further, in December, 2002, the state court granted an expungement of the indecency with a child cases.
Plaintiff alleges Defendants violated his civil rights by maliciously prosecuting him, falsely arresting and imprisoning him and conspiring to give and secure false testimony before the grand jury and at trial. II. DISCUSSION
1. Screening
Plaintiff's complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That section provides in pertinent part:
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 suit.28 U.S.C. § 1915A(a) and (b); see also 28 U.S.C. § 1915(e)(2)(B) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from suit.").
Applying the screening procedures to Plaintiff's complaint, the Court finds Plaintiff's complaint should be dismissed as barred by limitations.
2. Statute of Limitations
A civil rights action under 42 U.S.C. § 1983 is governed by a two-year statute of limitations. See Owens v. Okure, 488 U.S. 235, 250 (1989) (stating federal court should look to general personal injury limitations period of forum state); Ali v. Higgs, 892 F.2d 438, 439 (5th Cir. 1990) (finding limitations period in Texas is two years). Under federal law, a "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 case, although Plaintiff argues his claims accrued when the indecency with a minor charges were expunged from his record, Plaintiff knew the facts that form the basis for his claims on February 23, 2000, and February 21, 2000, when he was acquitted in cause number F99-02507 and charges were dismissed in cause number F99-31578. See Eugene v. Alief Independent School District, 65 F.3d 1299, 1306 (5th Cir. 1995) (finding malicious prosecution claims accrue when plaintiff is acquitted); Marshall v. City of Dallas, No. 3:03-CV-847-P, 2003 WL 21662822, (N.D. Tex. July 14, 2003) (magistrate judge's findings adopted August 21, 2003) (finding false arrest and false imprisonment claims accrue when plaintiff is acquitted). Plaintiff therefore had two years from February 23, 2000, to file his § 1983 action. He did not file this complaint until October 21, 2003. Plaintiff has stated no basis for equitable tolling of the limitations period. The complaint should therefore be dismissed as barred by limitations.
RECOMMENDATION
The Court recommends that Plaintiff's filed pursuant to 42 U.S.C. § 1983 be dismissed with prejudice as barred by limitations. INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on Plaintiff. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).