Opinion
No. 3:18-cv-2569-B (BT)
01-04-2019
BILLY JOHN ROBERSON, Plaintiff, v. LANCASTER TEXAS POLICE DEPT., Et Al., Defendants.
FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Billy John Roberson, proceeding pro se and in forma pauperis, filed a civil rights case under 42 U.S.C. § 1983. The Court has not issued process pending judicial screening. For the following reasons, the complaint should be dismissed as barred by limitations.
I.
Plaintiff claims that, on October 28, 2004, Defendants the Lancaster Police Department, Lancaster Chief of Police Samuel Urbanski, and the Mesquite Police Department, unlawfully arrested him without probable cause on a sexual assault charge. He states he was later no billed for the offense. By his lawsuit, he seeks money damages for false arrest.
II.
A district court may summarily dismiss a complaint filed in forma pauperis if it concludes the action is: (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). To state a claim upon which relief may be granted, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must plead those facts with enough specificity "to raise a right to relief above the speculative level[.]" Id. at 555. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662 (2009). While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Twombly, 550 U.S. at 555.
III.
Plaintiff's claims should be dismissed because they are barred by the 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).
Plaintiff alleges he was wrongfully arrested on October 28, 2004. Although he does not state the date his case was no billed, he has failed to allege it was within two years of the filing of his complaint. Additionally, Plaintiff has alleged no facts entitling him to equitable tolling of the limitations period. The complaint should therefore be dismissed.
IV.
Plaintiff's Complaint should be dismissed as barred by limitations.
Signed January 4, 2019.
/s/_________
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).