UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS No. 6:24-cv-00207 Daryl L. Davis, Plaintiff, v. Don Warren et al., Defendants.
ORDER Plaintiff Daryl Davis, proceeding pro se, filed this lawsuit com- plaining of alleged violations of 42 U.S.C. § 1983. Doc. 1. This case was referred to United States Magistrate Judge John D. Love. Doc. 3. On June 11, 2024, the magistrate judge issued an order to amend and directed plaintiff to respond to “whether his complaint should be dismissed as time-barred and whether any tolling provisions apply to the late filing of his complaint.” Doc. 4. at 6-7. Thereafter, plain- tiff filed an amended complaint (Doc. 6), and on June 27, 2024, the magistrate judge issued a report recommending that plaintiff’s § 1983 claims against defendants be dismissed without prejudice as barred by the statute of limitations and that plaintiff’s claims related to his ongoing complaints to city and county officials be dismissed with prejudice for failure to state a claim. Doc. 7. Plaintiff filed objec- tions to the report and recommendation (Doc. 11), as well as a mo- tion to recuse the magistrate judge (Doc. 12). The court reviews the objected-to portions of a report and rec- ommendation de novo. 28 U.S.C. § 636(b)(1). In conducting a de novo review, the court examines the entire record and makes an in- dependent assessment under the law. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc). In his objections, plaintiff maintains that his § 1983 claims re- lated to his arrest on February 7, 2019, are not time barred because his criminal case was dismissed pursuant to his plea of nolo contendere on May 13, 2024. Doc. 11 at 2-4.
In this case, plaintiff has alleged claims pursuant to § 1983 for unlawful arrest, malicious prosecution, unlawful detention, and ex- cessive use of force all related to his traffic stop, arrest, and detain- ment that occurred on February 7, 2019, and February 8, 2019. Docs. 1, 6. Plaintiff did not file the instant action until June 10, 2024. Doc. 1. Federal law does not provide a statute of limitations for 42 U.S.C. § 1983 actions; rather, the relevant statute of the forum state furnishes the limitations period, but federal law determines the date the accrual commences. See Owens v. Okure, 488 U.S. 235 (1989). In Texas, claims under § 1983 are governed by Texas’s two-year per- sonal-injury limitations statute. Tex. Civ. Prac. & Rem. Code § 16.003(a); King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 759 (5th Cir. 2015) (“[W]e have recognized that Texas’s two-year statute of limitations for personal injury actions applies to § 1983 claims filed in the state.”). Under Fifth Circuit law, “the [limitations] period begins to run ‘the moment the plaintiff becomes aware that he has suffered an in- jury or has sufficient information to know that he has been in- jured.’” See Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001) (quoting Russell v. Bd. of Trustees, 968 F.2d 489, 493 (5th Cir. 1992)). Here, plaintiff was aware of the facts that he now states provide a claim at the time they occurred over five years ago—that he was allegedly stopped under false pretenses, wrongfully accused of in- gesting crack cocaine, and arrested with excessive force. Thus, plain- tiff’s claims related to his February 7–8, 2019 arrest and detainment are timely only if tolling applies. Plaintiff relies on Heck v. Humphrey as a basis to toll the statute of limitations. In Heck, the Supreme Court held that when a plaintiff seeks to recover damages under § 1983 for actions whose unlawful- ness would render a conviction or sentence invalid, he must first prove that the conviction or sentence has been reversed, expunged, invalidated, or otherwise called into question. Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). Plaintiff was arrested on February 7, 2019; indicted on September 19, 2019; and convicted of Interference with Public Duties by plea of nolo contendere on May 13, 2024. Docs. 6, 6- 1, 6-2. Heck applies to plaintiff’s conviction obtained by a nolo plea. See Hernandez v. Boles, 184 F.3d 819 (5th Cir. 1999) (applying Heck to a conviction obtained by a plea of nolo contendere). Thus, if plain- tiff’s § 1983 claims call into question his Interference with Public Duties conviction, those claims would indeed be subject to Heck. However, Heck provides no basis for tolling in this case. Considering the limitations period in light of Heck, in Wallace v. Kato, the Court held that “the statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process.” 549 U.S. 384, 397 (2007). The Court further posited that where a suit is filed upon arrest, dismissed pursuant to Heck, and then refiled once the Heck conditions were met, tolling of time to refile the suit once the Heck bar was removed would be appropriate. Id. at 395 n.4. But the Court did not find tolling warranted in Kato because there, like in the instant case, the petitioner did not file an initial suit upon arrest or at any point during the limitations period. Id. at 391–92. Similarly, plaintiff’s excessive force claim began to run at the time of his arrest. See Morill v. City of Denton, 693 F. App’x 304, 305–06 (5th Cir. 2017) (unpublished). Here, plaintiff has provided no evidence, and the court can find no indication by a search of its docket, that plaintiff previously brought a suit on his § 1983 claims that was dismissed or stayed pur- suant to Heck or Kato. Thus, even assuming that plaintiff’s § 1983 claims would have been prospectively barred by Heck, this is not the “unusual case” that fits neatly within the doctrine of equitable toll- ing. Plaintiff now further cites McDonough v. Smith, 588 U.S. 109 (2019), to suggest that his claim for malicious prosecution is not time barred because he was prosecuted using fabricated evidence and the statute of limitations therefore began to run only when the criminal proceedings terminated in his favor on May 13, 2024. Doc. 11 at 3–4. Plaintiff’s argument and reliance on McDonough lack merit because his prosecution ended in a plea of nolo contendere and thus did not terminate in his favor. Doc. 6-2; see Pete v. Metcalfe, 8 F.3d 214, 219 (5th Cir. 1993) (holding that plaintiff failed to state a claim for mali- cious prosecution “because his prosecution ended with a plea of nolo contendere”). Therefore, plaintiff’s objections are without merit, and his claims pursuant to § 1983 for unlawful arrest, malicious prosecu- tion, unlawful detention, and excessive use of force are barred by the statute of limitations.
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS No. 6:24-cv-00207 Daryl L. Davis, Plaintiff, v. Don Warren et al., Defendants.
ORDER Plaintiff Daryl Davis, proceeding pro se, filed this lawsuit com- plaining of alleged violations of 42 U.S.C. § 1983. Doc. 1. This case was referred to United States Magistrate Judge John D. Love. Doc. 3. On June 11, 2024, the magistrate judge issued an order to amend and directed plaintiff to respond to “whether his complaint should be dismissed as time-barred and whether any tolling provisions apply to the late filing of his complaint.” Doc. 4. at 6-7. Thereafter, plain- tiff filed an amended complaint (Doc. 6), and on June 27, 2024, the magistrate judge issued a report recommending that plaintiff’s § 1983 claims against defendants be dismissed without prejudice as barred by the statute of limitations and that plaintiff’s claims related to his ongoing complaints to city and county officials be dismissed with prejudice for failure to state a claim. Doc. 7. Plaintiff filed objec- tions to the report and recommendation (Doc. 11), as well as a mo- tion to recuse the magistrate judge (Doc. 12). The court reviews the objected-to portions of a report and rec- ommendation de novo. 28 U.S.C. § 636(b)(1). In conducting a de novo review, the court examines the entire record and makes an in- dependent assessment under the law. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc). In his objections, plaintiff maintains that his § 1983 claims re- lated to his arrest on February 7, 2019, are not time barred because his criminal case was dismissed pursuant to his plea of nolo contendere on May 13, 2024. Doc. 11 at 2-4.
In this case, plaintiff has alleged claims pursuant to § 1983 for unlawful arrest, malicious prosecution, unlawful detention, and ex- cessive use of force all related to his traffic stop, arrest, and detain- ment that occurred on February 7, 2019, and February 8, 2019. Docs. 1, 6. Plaintiff did not file the instant action until June 10, 2024. Doc. 1. Federal law does not provide a statute of limitations for 42 U.S.C. § 1983 actions; rather, the relevant statute of the forum state furnishes the limitations period, but federal law determines the date the accrual commences. See Owens v. Okure, 488 U.S. 235 (1989). In Texas, claims under § 1983 are governed by Texas’s two-year per- sonal-injury limitations statute. Tex. Civ. Prac. & Rem. Code § 16.003(a); King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 759 (5th Cir. 2015) (“[W]e have recognized that Texas’s two-year statute of limitations for personal injury actions applies to § 1983 claims filed in the state.”). Under Fifth Circuit law, “the [limitations] period begins to run ‘the moment the plaintiff becomes aware that he has suffered an in- jury or has sufficient information to know that he has been in- jured.’” See Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001) (quoting Russell v. Bd. of Trustees, 968 F.2d 489, 493 (5th Cir. 1992)). Here, plaintiff was aware of the facts that he now states provide a claim at the time they occurred over five years ago—that he was allegedly stopped under false pretenses, wrongfully accused of in- gesting crack cocaine, and arrested with excessive force. Thus, plain- tiff’s claims related to his February 7–8, 2019 arrest and detainment are timely only if tolling applies. Plaintiff relies on Heck v. Humphrey as a basis to toll the statute of limitations. In Heck, the Supreme Court held that when a plaintiff seeks to recover damages under § 1983 for actions whose unlawful- ness would render a conviction or sentence invalid, he must first prove that the conviction or sentence has been reversed, expunged, invalidated, or otherwise called into question. Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). Plaintiff was arrested on February 7, 2019; indicted on September 19, 2019; and convicted of Interference with Public Duties by plea of nolo contendere on May 13, 2024. Docs. 6, 6- 1, 6-2. Heck applies to plaintiff’s conviction obtained by a nolo plea. See Hernandez v. Boles, 184 F.3d 819 (5th Cir. 1999) (applying Heck to a conviction obtained by a plea of nolo contendere). Thus, if plain- tiff’s § 1983 claims call into question his Interference with Public Duties conviction, those claims would indeed be subject to Heck. However, Heck provides no basis for tolling in this case. Considering the limitations period in light of Heck, in Wallace v. Kato, the Court held that “the statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process.” 549 U.S. 384, 397 (2007). The Court further posited that where a suit is filed upon arrest, dismissed pursuant to Heck, and then refiled once the Heck conditions were met, tolling of time to refile the suit once the Heck bar was removed would be appropriate. Id. at 395 n.4. But the Court did not find tolling warranted in Kato because there, like in the instant case, the petitioner did not file an initial suit upon arrest or at any point during the limitations period. Id. at 391–92. Similarly, plaintiff’s excessive force claim began to run at the time of his arrest. See Morill v. City of Denton, 693 F. App’x 304, 305–06 (5th Cir. 2017) (unpublished). Here, plaintiff has provided no evidence, and the court can find no indication by a search of its docket, that plaintiff previously brought a suit on his § 1983 claims that was dismissed or stayed pur- suant to Heck or Kato. Thus, even assuming that plaintiff’s § 1983 claims would have been prospectively barred by Heck, this is not the “unusual case” that fits neatly within the doctrine of equitable toll- ing. Plaintiff now further cites McDonough v. Smith, 588 U.S. 109 (2019), to suggest that his claim for malicious prosecution is not time barred because he was prosecuted using fabricated evidence and the statute of limitations therefore began to run only when the criminal proceedings terminated in his favor on May 13, 2024. Doc. 11 at 3–4. Plaintiff’s argument and reliance on McDonough lack merit because his prosecution ended in a plea of nolo contendere and thus did not terminate in his favor. Doc. 6-2; see Pete v. Metcalfe, 8 F.3d 214, 219 (5th Cir. 1993) (holding that plaintiff failed to state a claim for mali- cious prosecution “because his prosecution ended with a plea of nolo contendere”). Therefore, plaintiff’s objections are without merit, and his claims pursuant to § 1983 for unlawful arrest, malicious prosecu- tion, unlawful detention, and excessive use of force are barred by the statute of limitations. Regarding his remaining claims, plaintiff states that racial profil- ing generally violates the Constitution and that Tyler City Council Member Shirley McKellar was personally present on February 11, 2019, when his urinalysis came back negative for illegal drugs. Doc. 11 at 4–5. Plaintiff’s specific assertion against defendant McKellar suffers from the same time-bar problems as his § 1983 claims dis- cussed above. Moreover, plaintiff provides nothing more than gen- eral assertions that the city and county officials were all put on notice that his constitutional rights were being violated and did nothing. Id. at 5. General allegations of racial profiling without specific facts do not state a claim entitled to relief. Even with pro se litigants, “con- clusory allegations or legal conclusions masquerading as factual con- clusions” are not sufficient. Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting S. Christian Leadership Conf. v. Sup. Ct. of the State of La., 252 F.3d 781, 786 (5th Cir. 2001)). Plaintiff’s conclusory allegations fail to state a claim. Lastly, through his motion, plaintiff appears to object to the mag- istrate judge’s handling of this suit. Doc. 12. Here, the matter was referred to the magistrate judge pursuant to 28 U.S.C. § 636(b)(1), and the magistrate judge conducted an initial screening of the plead- ings pursuant to 28 U.S.C. § 1915. Section 636(b)(1) provides the au- thority to refer any non-dispositive, pretrial matter to the magistrate judge for determination and to designate a magistrate judge to con- duct hearings and to submit proposed findings of fact and recom- mendations for the disposition of a matter to the district judge. Jack- son v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989). The screening of pleadings pursuant to 28 U.S.C. § 1915 for proposed findings of fact and recommendations is well within the statutory authority granted. Plaintiff’s motion (Doc. 12), which the court construes liberally as an additional objection, is therefore baseless. Accordingly, plaintiff’s objections are overruled, and the court accepts the report and recommendation. Doc. 7. Plaintiff’s § 1983 claims related to his February 2019 arrest and subsequent prosecu- tion are dismissed without prejudice as barred by the statute of limi- tations. Plaintiff’s claims related to his ongoing complaints to city and county officials are dismissed with prejudice for failure to state a claim. All pending motions are denied. So ordered by the court on August 21, 2024. field BARKER United States District Judge
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