Opinion
No. 3:01-CV-2272-D
May 21, 2002
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
On November 13, 2001, Plaintiff filed this complaint alleging Defendants violated his civil rights under 42 U.S.C. § 1983. Plaintiff alleges that during his arrest on August 27, 1998, Defendant Officer Walker "possibly" planted drugs on him. Plaintiff also alleges that Officer Foster falsified police reports regarding his arrest, and that Officer Sterling gave false testimony against Plaintiff at trial. Finally, Plaintiff alleges that Officer Larsen "misplaced or took money" from Plaintiff during his arrest.
II. DISCUSSION
Plaintiffs 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 maybe 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 claims against Defendants Walker, Foster and Sterling should be dismissed under the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff's claims against Defendant Larsen should be dismissed as barred by limitations.
1. Heck v. Humphrey
In Heck, the Supreme Court held that a § 1983 claim attacking the constitutionality of a conviction or imprisonment does not accrue until that conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck, 512 U.S. at 486-87. Heck also bars damage claims, which, if successful, would necessarily imply the invalidity of a conviction or pending charge. Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996).
Plaintiff was convicted of knowingly and intentionally possessing cocaine, with the intent to deliver. See United States Magistrate Judge's Questionnaire, Answer 1. Plaintiffs claims that Officer Walker planted drugs on him, that Officer Foster falsified the police report and that Officer Sterling gave false testimony at trial, necessarily imply the invalidity of Plaintiff's conviction. Plaintiffs allegations show, however, that his conviction and confinement have not been reversed, expunged, or otherwise invalidated. See United States Magistrate Judge's Questionnaire, Answers 1, 2. Hence, no § 1983 cause of action has yet accrued and Plaintiff's claims against Officers Walker, Foster and Sterling should be dismissed with prejudice until the Heck conditions are met. See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996) (stating dismissal should be with prejudice until Heck conditions are met).
2. Statute of Limitations
Plaintiff claims Officer Larsen misplaced or took money from him during his arrest. 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). Plaintiff states he learned of the alleged violation of his civil rights on September 8, 1998. See United States Magistrate Judge's Questionnaire, Answer 4. He did not file his complaint, however, until November 13, 2001. Plaintiffs claims against Officer Larsen are therefore untimely.
Plaintiff is also not entitled to equitable tolling of the limitations period. Petitioner states he was not aware that he could file a civil rights suit until he was incarcerated and began researching the law. See United States Magistrate Judge's Questionnaire, Answer 4. Lack of knowledge about the law, however, does not justify equitable tolling. See, Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) (finding ignorance of the law does not excuse a person's failure to comply with a statute of limitations); Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999) (holding plaintiffs unfamiliarity with the legal process and lack of legal representation during the filing period do not warrant equitable tolling). Plaintiff's claims against Officer Larsen should therefore be dismissed as barred by limitations.
Equitable coiling principles apply to civil rights cases filed under 42 U.S.C. § 1983. Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998).
3. Miscellaneous motions
Plaintiff has filed a number of motions in this case. He filed a motion for leave to file first amended complaint, motion for leave to file second amended complaint, motion for service of process and motion for partial summary judgment. In Plaintiff's motions to amend, he seeks to add Officer DeLapaz and the Dallas Police Department as Defendants. Plaintiff alleges Officer DeLapaz planted drugs on him when he was arrested. As discussed above, these claims are barred by Heck. Further, besides naming the Dallas Police Department, Plaintiff does not make any factual allegations against the Department. Plaintiffs motions to amend should therefore be denied as futile. Additionally, in light of the recommendation that this case be dismissed, Plaintiff's motion for partial summary judgment and motion for service should be denied.
Defendants have also filed a motion to dismiss for insufficiency of process and a motion to strike Plaintiff's motion for partial summary judgment as improper where process has not issued. Defendants also seek attorney fees and costs. The Court has not issued process in this case. It appears Plaintiff mailed Defendants a copy of his complaint. In light of the Court's recommendation that Plaintiff's complaint be dismissed, Defendants' motion to dismiss and motion to strike motion for partial summary judgment should be denied. Defendants' request for attorney fees and costs should be denied.
RECOMMENDATION
The Court recommends that Plaintiff's claims against Defendants Walker, Foster and Sterling be dismissed with prejudice under Heck v. Humphrey. The Court recommends that Plaintiff's claims against Defendant Larsen be dismissed with prejudice as barred by the statute of limitations. Finally, the Court recommends that all pending motions be denied.