Filed: Dec. 05, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 5, 2005 _ Charles R. Fulbruge III 04-51213 Clerk _ SCOTT PRICE, Plaintiff - Appellant, v. CITY OF SAN ANTONIO TEXAS; JOHN ANTHONY GARCIA, Individually and in his Official Capacity; HAROLD RAINEY, Individually and in his Official Capacity, Defendants - Appellees. _ Appeal from the United States District Court for the Western District of Texas, San Antonio Division _ Before R
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 5, 2005 _ Charles R. Fulbruge III 04-51213 Clerk _ SCOTT PRICE, Plaintiff - Appellant, v. CITY OF SAN ANTONIO TEXAS; JOHN ANTHONY GARCIA, Individually and in his Official Capacity; HAROLD RAINEY, Individually and in his Official Capacity, Defendants - Appellees. _ Appeal from the United States District Court for the Western District of Texas, San Antonio Division _ Before RE..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 5, 2005
_____________________
Charles R. Fulbruge III
04-51213 Clerk
_____________________
SCOTT PRICE,
Plaintiff - Appellant,
v.
CITY OF SAN ANTONIO TEXAS; JOHN ANTHONY GARCIA, Individually and in
his Official Capacity; HAROLD RAINEY, Individually and in his
Official Capacity,
Defendants - Appellees.
___________________
Appeal from the United States District Court
for the Western District of Texas, San Antonio Division
___________________
Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:
Appellant Scott Price appeals the district court’s dismissal
of his claims under 42 U.S.C. § 1983.1 For the reasons below, we
affirm. We modify, however, the dismissal of Price’s false arrest
and prosecution claims so that they are dismissed without
prejudice.
I. Background
On October 31, 2001, Price was involved in an altercation with
1
Price also made claims under 42 U.S.C. § 1985 and under
state law that were dismissed below. Because his brief does not
address these claims, he has waived any objection to their
dismissal. See FED. R. APP. P. 28(a)(9)(A); Eugene v. Alief
Independent Sch. Dist, 65 F.3d 1299, 1303 n.1 (5th Cir. 1995).
an uninvited visitor to his apartment. A neighbor contacted the
police, and Harold Rainey and John Garcia, both San Antonio police
officers, responded. Price’s complaint alleges that, immediately
after Officers Rainey and Garcia arrived, they began to beat him
with their batons, spray him with pepper spray, and kick him in the
chest. The complaint avers that Price had not provoked the
officers and posed no threat to them. Price further alleges that
after neighbors called for an ambulance, the officers bound his
arms and legs with duct tape. On the same date, Price was charged
with the felony offense of taking or attempting to take a weapon
from a police officer. On April 19, 2002, that charge was
dismissed and refiled as the misdemeanor offense of interfering
with public duties. The misdemeanor charge was still pending when
Price commenced this suit.
On Monday, November 3, 2003, Price filed a complaint against
Officers Rainey and Garcia and the City of San Antonio, claiming,
inter alia, that Appellees violated section 1983. Specifically,
Price claimed invasion of privacy, unreasonable search, use of
excessive force, false arrest, and “malicious prosecution.”2 Price
2
In Castellano v. Fragazo, we held that “‘malicious
prosecution’ standing alone is no violation of the United States
Constitution.” 352 F.3d 939, 942 (5th Cir. 2003) (en banc).
Castellano nevertheless recognized that the “initiation of
criminal charges without probable cause may set in force events
that run afoul of explicit constitutional protection . . . .”
Id. at 953–53. Price’s complaint and the court below used
“malicious prosecution” to describe claims that Price had arising
out of his prosecution. We decline to use that term of art
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alleged that the City of San Antonio sanctioned the officers’
actions by being “deliberately indifferent” to police training and
discipline.
Appellees moved to dismiss Price’s claims, arguing that they
were barred by the statute of limitations. The district court
referred the matter to a magistrate judge, who recommended that the
statute of limitations did not bar Price’s suit. The magistrate
determined that the applicable statute of limitations did not
expire until November 1, 2003. Since November 1st fell on a
Saturday, the magistrate thus recommended that Price’s Monday,
November 3rd complaint was timely filed. See FED. R. CIV. P. 6(a).3
Additionally, the magistrate advised that Price’s prosecution
claims4 be dismissed without prejudice. The report noted that
Price’s complaint did not allege that criminal proceedings had
terminated in his favor, as required to state a claim.
On review of the report, the district court rejected the
magistrate’s recommendation that Price’s claims were timely filed,
holding that the statute of limitations had expired on October 31,
2003. In reaching its conclusion, the court stated that it was
accepting the magistrate’s interim determination that all of
because doing so “only invites confusion.” Id. at 954.
3
Under Rule 6(a), when the last day of any time period
prescribed by statute falls on a Saturday, Sunday, or a legal
holiday, the period is extended “until the end of the next day
which is not one of those aforementioned days.”
4
See note 2, supra.
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Price’s causes of action had accrued on October 31, 2001, “as no
party objected to this finding.” Price v. City of San Antonio, No.
SA-03-CA-1103-FB, slip op. at 3 (W.D. Tex. Sept. 22, 2004). Price
claims on appeal that the district court erred in concluding that
his claims were time-barred both by miscalculating the limitations
period and in determining that his claims accrued on October 31,
2001.
II. Discussion
A. Calculation of the Limitations Period
“We review de novo a district court's conclusion that a claim
is time-barred.” Rashidi v. American President Lines, 96 F.3d 124,
126 (5th Cir. 1996). Price argues that the court miscalculated the
limitations period and should have accepted the magistrate’s
recommendation that it expired, at the earliest, on November 3,
2003—the first business day following the same calendar day two
years after the incident that gave rise to the suit. We disagree.
The limitations period for a claim brought under section 1983
is determined by the general statute of limitations governing
personal injuries in the forum state. Piotrowski v. City of
Houston, 237 F.3d 567, 576 (5th Cir. 2001). There is no dispute
that the applicable statute provides that claims must be brought
“not later than two years after the day the cause of action
accrues.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (Vernon 2005). The
parties dispute, however, the precise method of calculating the
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two-year limitation. To construe a Texas statute, we look to how
Texas’s highest court would resolve the issue. See, e.g., C&H
Nationwide, Inc. v. Norwest Bank Texas NA, 208 F.3d 490, 495 (5th
Cir. 2000).
In support of his claim that he is entitled to bring a claim
on the day after the same calendar day two years subsequent to the
incident, Price cites our decision in Gonzales v. Wyatt, 157 F.3d
1016 (5th Cir. 1998). Discussing Texas’s two-year statute of
limitations as it applied to section 1983, the Gonzales Court
stated:
The complaint alleges that Wyatt used excessive force on
Gonzales on January 24, 1994 . . . . Limitations, if not
tolled, generally continues to run until the suit is
commenced by the filing of the plaintiff's complaint in
the clerk’s office. It is hence clear that unless
Gonzales’ complaint can be said to have been filed on or
before January 25, 1996, the claims asserted therein are
barred by limitations.
Id. at 1020 (internal citations omitted). Gonzales’s discussion of
the specifics of calculating a limitations period under section
16.003 was dicta. The plaintiff in Gonzales did not file suit
until March of 1996.
Id. at 1022. Thus, the passage on which
Price relies was not necessary to the outcome of the case.
Earlier Fifth Circuit cases conflict with Gonzales’s analysis.
See Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 549
(5th Cir. 1997) (holding that the earlier of two conflicting
decisions controls). Addressing Texas’s section 16.003 in a
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section 1983 case, we stated in Henson v. Rogers:
the limitations period began to run on September 1, 1987.
Therefore, [the plaintiff] had only until September 1,
1989 to file his complaint.
923 F.2d 51, 52 (5th Cir. 1991); see also Flores v. Cameron County,
92 F.3d 258, 272 (5th Cir. 1996). As in Wyatt, the specific
calculation of the limitations period in Henson and Flores did not
determine the outcome. We need not rely exclusively on these
hypothetical discussions because Texas courts have squarely
addressed the issue.
Applying an earlier, now-repealed two-year personal injury
statute of limitations, the Texas Supreme Court held that “the
commencement of [the plaintiff’s] suit on January 2, 1970, was not
within the two year period” where her “right . . . to enforce her
claim” arose on January 1, 1968. Kirkpatrick v. Hurst, 484 S.W.2d
587, 588 (Tex. 1972). Texas intermediate appellate courts applying
the current statute have uniformly held that a complaint filed the
day after the same calendar day two years after the action accrued
is one day too late.5 See Segura v. Home Depot USA, Inc.,
2001 WL
387995, *4–6 (Tex. App.–San Antonio 2001, no pet.) (not designated
for publication); Medina v. Lopez-Roman,
49 S.W.3d 393, 397–98
5
In predicting how the Texas Supreme Court would rule on an
issue that it has not specifically addressed, “we defer to
intermediate state appellate court decisions unless convinced by
other persuasive data that the highest court of the state would
decide otherwise.” Herrmann Holdings Ltd. v. Lucent Technologies
Inc., 302 F.3d 552, 558 (5th Cir. 2002) (internal quotation marks
omitted).
-6-
(Tex. App.–Austin 2000, pet. denied); Fisher v. Westmont
Hospitality, 935 S.W.2d 222, 224 (Tex. App.–Houston [14th Dist.]
1996, no writ); Hargraves v. Armco Foods, Inc.
894 S.W.2d 546,
546–47 (Tex. App.–Austin 1995, no writ) (per curiam). Accordingly,
we conclude that the Texas Supreme Court would hold that section
16.003 requires a claim to be brought no later than the same
calendar day two years following the accrual of the cause of
action.6
This conclusion is fatal to Price’s invasion of privacy,
unreasonable search, and excessive force claims. Ordinarily, a
cause of action under section 1983 accrues when the plaintiff
“knows or has reason to know of the injury which is the basis of
the action.” Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir.
1992). Price does not challenge the determination below that he
knew or should have known about the injuries underlying his
invasion of privacy, unreasonable search, and excessive force
claims on October 31, 2001, when the incident occurred.7 His
November 3, 2003 complaint was filed more than two years after
these claims accrued, and therefore the district court correctly
concluded that they were barred by the statute of limitations.
6
The relevant day, October 31, 2003, was a Friday. Thus,
Rule 6(a) is not applicable here.
7
Price argues, incorrectly, that the general accrual rule
does not apply to these claims. See note 8 and accompanying
text, infra.
-7-
B. Accrual of Price’s False Arrest and Prosecution Claims
The district court dismissed all of Price’s causes of action
as barred by the statute of limitations, including his false arrest
and prosecution claims. Price argues that the court erroneously
used October 31, 2001 as the accrual date for those claims. The
parties vigorously dispute the appropriate standard of review, with
Appellees contending that we should review only for plain error
because Price did not object to the magistrate’s report. See
Douglass v. United States Automobile Association, 79 F.3d 1415,
1428–29 (5th Cir. 1996). Price points out, however, that he
ultimately prevailed on the statute of limitations question before
the magistrate and therefore had no reason to object.
We need not resolve this dispute. Whether our review is de
novo or for plain error, we must still modify the district court’s
order insofar as it dismisses Price’s false arrest and prosecution
claims with prejudice. Under plain error review, we will correct
errors that are plain, affect substantial rights, and seriously
affect the fairness, integrity or public reputation of judicial
proceedings. See id. at 1424.
First, the district court’s ruling that the statute of
limitations barred even Price’s false arrest and prosecution claims
was error that is plain. An error is plain when it is clear or
obvious. Id. We have held that the statute of limitations does
not begin running on section 1983 prosecution claims until
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proceedings have terminated in the plaintiff’s favor. See Eugene
v. Alief Independent Sch. Dist., 65 F.3d 1299, 1306 (5th Cir.
1995); see also Castellano v. Fragozo,
353 F.3d 939, 959 (5th Cir.
2003) (en banc) (reaffirming the rule that claims of
“constitutional deprivations suffered in a state court prosecution”
do not accrue until “criminal proceeding[s] terminate in [the
plaintiff’s] favor”). Additionally, we have held that when false
arrest claims are brought in conjunction with such claims, the
false arrest claims are “essentially part” of the prosecution
claims and therefore accrue at the same time. See Brandley v.
Keeshan,
64 F.3d 196, 199 (5th Cir. 1995).8 At the time Price
filed his complaint, criminal proceedings stemming from the October
31, 2001 incident were still pending against him. No false arrest
or prosecution claim had accrued. Accordingly, the district
court’s dismissal of such claims as barred by the statute of
8
We reject Price’s suggestion that Brandley extends to all
of his section 1983 claims. In Brandley, the plaintiff had
brought assault, battery, defamation, and invasion of privacy
claims in addition to false arrest/false imprisonment claims. 64
F.3d at 198. Yet the Brandley court reversed only the district
court’s dismissal of his false arrest/false imprisonment claims
as time-barred.
Id. at 199. Unlike Price’s false arrest claims,
his excessive use of force claims are not “essentially part” of a
claim arising out of his prosecution.
Id. at 199. Furthermore,
even assuming that Heck v. Humphrey,
512 U.S. 477, 487 (1994),
could apply when the plaintiff has not yet been convicted, Price
has not explained how any of the claims addressed in Part
II.A.,
supra, would necessarily imply the invalidity of a conviction.
Thus, we cannot conclude that Heck postponed the accrual of those
claims.
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limitations was plainly erroneous.9
Second, the district court’s dismissal with prejudice affected
substantial rights because it resulted in the permanent loss of
Price’s claims. Lastly, the court’s application of the statute of
limitations to permanently bar Price’s claims seriously affected
the fairness of judicial proceedings. We have recognized that
holding a plaintiff’s section 1983 claim time-barred before it has
even accrued would be a “perverse result.” Brummett v. Camble, 946
F.2d 1178, 1184 (5th Cir. 1991). Thus, even assuming that plain
error review applies, we exercise our discretion to correct the
error.
Although the district court’s dismissal with prejudice was
plainly erroneous, dismissal without prejudice of Price’s claims
that had not yet accrued would have been correct. We, therefore,
affirm the dismissal of Price’s false arrest and prosecution claims
on the alternate ground that criminal proceedings have not
terminated in his favor. See Aldrich v. Johnson, 388 F.3d 159, 160
(5th Cir. 2004) (per curiam). We modify the judgment to reflect
that Price’s false arrest and prosecution claims are dismissed
without prejudice. In so doing, we do not imply that Price could,
if criminal proceedings were terminated in his favor, state a
section 1983 claim for “malicious prosecution.” We are mindful of
9
We would similarly conclude that the district court erred
if our review were de novo.
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Castellano’s conclusion that “malicious prosecution” alone does not
state a federal claim. 352 F.3d at 942. Further, we have no
occasion to consider here the significance of Castellano’s
suggestion that a section 1983 plaintiff might nevertheless state
a claim for “constitutional deprivations suffered in the course of
state court prosecution.”
Id. at 959. We hold only that insofar
as any such claim exists, it would not accrue until criminal
proceedings terminate in favor of the plaintiff.
III. Conclusion
We AFFIRM the dismissal of Price’s section 1983 claims for
invasion of privacy, unreasonable search, and use of excessive
force as barred by the statute of limitations. The dismissal of
the remainder of Price’s section 1983 claims is AFFIRMED but
MODIFIED such that his claims for constitutional deprivations
suffered in the course of his prosecution, including false arrest,
are dismissed WITHOUT PREJUDICE.
JUDGE EMILIO M. GARZA CONCURS IN THE JUDGMENT AND CONCURS IN THE
OPINION EXCEPT FOR PART II.B.
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