Opinion
Civil Action No. 3:01-CV-0155-K
March 20, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
On January 22, 2001, plaintiff commenced this action against three specific defendants (John D. Kocher, Sheriff Jim Bowles, and Dallas County) and numerous "John Does Jane Roes". ( See Original Compl. filed Jan. 22, 2001). In February 2001, the Court granted plaintiff leave to proceed with this action in forma pauperis. ( See Order of Feb. 15, 2001.) It thereafter ordered the United States Marshal's Service to serve all named defendants. ( See Order of Apr. 20, 2001.) On July 30, 2002, the Court dismissed without prejudice all unidentified defendants. ( See Order of July 30, 2002.) On September 19, 2002, plaintiff petitioned the Court to identify and thus add eight of the previously unidentified defendants as parties to this action. ( See Pet. to Add Parties.) On November 7, 2002, the Court granted the request to add parties subject to screening under the in forma pauperis statute, 28 U.S.C. § 1915 (e)(2). ( See Order of Nov. 7, 2002.) Plaintiff thereafter filed an Amended Complaint on November 18, 2002, in which he sues the original three named defendants and eight previously unidentified defendants now identified as DSO Leanor Chapa, DSO Marcella Hale, DSO Tonia Silva, DSO Rudolfo Orozco, DSO Tyrone Green, DSO Deborah A. Bell, DSO Undrea Conley, and DSO William Britton. ( See Am. Compl. at 1.) This action concerns events that occurred on January 23, 1999. ( Id. ¶ 3.02.)
II. PRELIMINARY SCREENING
Plaintiff's action arises under 42 U.S.C. § 1983. That section "provides a federal cause of action for the deprivation, under color of law, of a citizen's `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). It "afford[s] redress for violations of federal statutes, as well as of constitutional norms." Id.
The Court has permitted plaintiff to proceed in forma pauperis. His complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915 (e)(2). That section provides for sua sponte dismissal if the Court finds the complaint frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief.
Because this action concerns events that occurred on January 23, 1999, the Court must examine the timeliness of the instant action. The Court "may raise the defense of limitations sua sponte." Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). "Where it is clear from the face of a complaint filed in forma pauperis that the claims asserted are barred by the applicable statute of limitations, those claims are properly dismissed," pursuant to 28 U.S.C. § 1915 (e)(2)(B). Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993).
"The statute of limitations for a suit brought under § 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.), cert. denied, 534 U.S. 820 (2001). In view of Texas' two-year statute of limitations for personal injury claims, plaintiff had two years from the date his claims accrued to file suit. Id.; see also, Hatchet v. Nettles, 201 F.3d 651, 653 (5th Cir. 2000).
Accrual of a § 1983 claim is governed by federal law: "Under federal law, the [limitations] period begins to run `the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.'" A plaintiff's awareness encompasses two elements: "(1) The existence of the injury; and (2) causation, that is, the connection between the injury and the defendant's actions." A plaintiff need not know that she has a legal cause of action; she need know only the facts that would ultimately support a claim. Actual knowledge is not required "if the circumstances would lead a reasonable person to investigate further."Piotrowski, 237 F.3d at 576 (citations omitted). In other words, "[t]he 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 instance, plaintiff's action accrued on January 23, 1999, when he knew of the injury which forms the basis of this action. His original complaint filed on January 22, 2001, is thus timely. He did not, however, identify any of the "John Doe" or "Jane Roe" defendants until after the statute of limitations expired. Unless the identification of these eight individuals relates back, under Fed.R.Civ.P. 15(c), to the date plaintiff filed his original complaint, the claims against them are subject to dismissal as untimely. See Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998) (addressing matter in context of denying a motion to amend); Hazelton v. City of Grand Prairie, 8 F. Supp.2d 570, 581 (N.D. Tex. 1998) (granting motion to dismiss claims against a previously unidentified defendant as barred by statute of limitations).
In Jacobsen, the Fifth Circuit directly addressed the relation back doctrine of Rule 15(c) as it relates to identifying previously unidentified defendants. It held that an amendment that identifies formerly unidentified defendants would not relate back, because "there was no `mistake' in identifying the correct defendant; rather, the problem was not being able to identify that defendant." Id. at 321. When an amendment is "not necessitated by the `mistake' or `misidentification' at which Rule 15(c)(3) is aimed . . . the Rule does not allow relation back to the filing of the original complaint." Id. at 321-22.
Consequently, the claims against the eight previously unidentified defendants should be dismissed as frivolous under 28 U.S.C. § 1915 (e)(2) for the failure of plaintiff to file them within the statutory period of limitations. Nothing indicates that the limitations period should be tolled. Nothing indicates that equitable tolling is warranted under Texas law.
"Because the Texas statute of limitations is borrowed in § 1983 cases, Texas' equitable tolling principles also control." Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998).
III. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court DISMISS plaintiff's claims against DSO Leanor Chapa, DSO Marcella Hale, DSO Tonia Silva, DSO Rudolfo Orozco, DSO Tyrone Green, DSO Deborah A. Bell, DSO Undrea Conley, and DSO William Britton with prejudice as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B) for the failure of plaintiff to file such claims within the two-year period of limitations. The action shall proceed against defendants John D. Kocher, Sheriff Jim Bowles, and Dallas County.INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) 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. 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 Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).