IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
S))))))))))))))Q
No. 91-1494
S))))))))))))))Q
OMER GILBERT PETE,
Plaintiff-Appellant,
versus
DON METCALFE, ET AL.,
Defendants-Appellees.
S))))))))))))))))))))))))Q
Appeal from the United States District Court for the
Northern District of Texas
S))))))))))))))))))))))))Q
(November 16, 1993)
Before GARWOOD and DEMOSS, Circuit Judges, and DUPLANTIER, District
Judge.*
GARWOOD, Circuit Judge:
Plaintiff-appellant Omer Gilbert Pete (Pete) appeals the
dismissal of his 42 U.S.C. § 1983 civil rights action against
various defendants arising out of his arrest, prosecution and
incarceration for sexual assault. We affirm.
Facts and Proceedings Below
Pete alleged that sometime in early 1985, Dudley Perry
(Perry), a Mesquite, Texas, police officer, confronted Pete with a
*
United States District Judge, Eastern District of Louisiana,
sitting by designation.
charge by his daughter, Trellis, that Pete had raped her on July 3,
1982. Pete explained to Perry that he had been in a severe
accident on June 27, 1982, that had physically incapacitated him
for several months. Perry confronted Pete again sometime later and
stated that Trellis had changed her story and now recalled that
Pete had raped her in April or May of 1982. This second time
proved to be outside the limitations period for criminal charges.
On May 12, 1985, Pete was arrested and charged with multiple
felony offenses, including sexual assault of his younger daughter,
Samantha. The day after Pete's arrest, Perry showed Pete what
purported to be a signed statement by Samantha accusing Pete of
sexually assaulting her. Perry boasted to Pete that he (Perry) had
been after Pete for ten years and had finally gotten him. Pete
noticed at the time, however, that Samantha's alleged statement was
not in Samantha's handwriting, but in Trellis' handwriting, and
that Samantha's signature appeared to have been pasted onto the
document and photocopied.
According to Pete, Perry and Dennis Cox (Cox), an investigator
for the Dallas County District Attorney's Office, had conspired
with Trellis to falsely accuse Pete. Also according to Pete, it
was Perry who persuaded Samantha to fabricate her charges of sexual
assault against Pete by convincing her that Pete had murdered his
wife (Samantha's mother), and would kill Samantha as well unless
she cooperated in having Pete sent to jail.1
1
According to Pete, after he was finally released from prison
he was able to speak to his daughter Samantha, at which point she
admitted fabricating the sexual assault charge against him. In
an affidavit executed by Samantha Pete on February 18, 1990, she
admitted to fabricating the accusations at the behest of Perry,
Pete retained attorneys Don Metcalfe (Metcalfe) and Paul Fourt
(Fourt) to represent him. Pete was released on bail on May 14,
1985, but was re-incarcerated shortly thereafter when the court
increased his bail. Pete posted bond and was again released on
July 29, 1985.
Pete was convicted of the charges against him and sent to a
Texas Department of Corrections (TDC) facility to serve his
sentence. On his direct appeal, Pete's conviction was reversed and
remanded for another trial by the Texas Fifth District Court of
Appeals in Dallas on May 7, 1986. The State petitioned the Texas
Court of Criminal Appeals for review; the Court of Criminal Appeals
denied the petition. Pete was transferred from the TDC facility
back to the Dallas County Jail on April 23, 1987, pending his
retrial.
Pete then again attempted to secure his release on bail from
the Dallas county jail. This release was precluded, however, by a
TDC administrative "hold" that had been placed on him. According
to Pete, at this point Metcalfe and Fourt did nothing to help him
secure his release and because of this, and because of their poor
performance in representing him, Pete fired them.
Prior to Pete's second trial, the court appointed attorney Sue
Gorham (Gorham) to represent him. Gorham arranged a plea bargain
for Pete whereby he would plead nolo contendere to the charges and
receive a sentence of the two years he had already served in
prison. Pete accepted the plea bargain.
Cox, and her sister, Trellis.
3
Even after the plea bargain was accepted by the court and
Pete's sentence set at time served, however, he was unable to
secure his release from Dallas County Jail because of the TDC hold
on him. He petitioned for a writ of habeas corpus and was finally
released on November 26, 1987.
Pete also alleges that Joshua W. E. Taylor (Taylor), an
attorney, had been appointed as Samantha's guardian ad litem by the
Texas Juvenile Court on May 15, 1985, three days after Pete was
originally arrested. On October 31, 1985, the Juvenile Court
issued a permanent injunction that no contact be permitted between
Pete and Samantha. An exception to the injunction permitted
written correspondence between the two, but such letters were to be
screened by the Juvenile Court.
Pete alleged that Taylor knew that Samantha had fabricated her
charge against Pete, but withheld that information from the court.2
Pete also claimed that Taylor aided Perry in persuading Samantha to
testify against Pete, and that Taylor further restricted
communication between Pete and Samantha, which prevented Pete from
discovering what or who had caused her to falsely accuse him.
On October 16, 1989, almost two years after his final release
from prison, Pete filed this 42 U.S.C. § 1983 suit in United States
district court seeking damages against Metcalfe, Fourt, Gorham,
Perry, Cox, Taylor, and the TDC for their parts in his arrest,
prosecution, and imprisonment. The case was referred to a
2
Samantha claimed in her affidavit that she had admitted to
Taylor, on at least one occasion, that she had fabricated her
accusation and testimony against Pete.
4
magistrate who, following diverse motions by various of the
defendants and responses thereto by Pete, recommended dismissal of
Pete's claims because (1) Pete's claims were barred by the statute
of limitations, (2) the TDC was immune from liability by virtue of
the Eleventh Amendment, and (3) Metcalfe, Fourt, Gorham, or Taylor,
as private attorneys, were not state actors and therefore could not
be sued under section 1983. The district court adopted the
magistrate's findings and dismissed the suit. Pete filed a timely
notice of appeal.
Discussion
We first note that the Eleventh Amendment precludes Pete's
suit against the TDC for damages. Alabama v. Pugh, 98 S.Ct. 3057,
3058 (1978); Clay v. Texas Women's University, 728 F.2d 714, 715
(5th Cir. 1984). Pete has not challenged this ruling on appeal.
Second, Metcalfe, Fourt, and Gorham, the attorneys who
represented Pete in this matter, are not state officers or
employees. The Supreme Court, in Dennis v. Sparks, 101 S.Ct. 183
(1980), held that the proper test for determining whether a private
party is amenable to suit under section 1983 is whether the party
was "a willful participant in joint action with the State or its
agents." Id. at 186.
In his pleadings, Pete charges Metcalfe, Fourt, and Gorham
with nothing more than professional malpractice. In his complaint,
Pete asserts liability of these three attorneys on the basis of
"inaction, negligence and malpractice [that] deprive [Pete] of
liberty and property without due process of law . . . ." Even
5
affording Pete's pro se pleadings the liberal construction to which
they are entitled, see Haines v. Kerner, 92 S.Ct. 594 (1972), we
cannot find any allegation of complicity between these attorneys
and any of the other state actors allegedly involved in Pete's
arrest and prosecution.
Applying the Sparks standard, we find that Pete did not plead
sufficient facts that, if true, would render Metcalfe, Fourt, and
Gorham amenable to suit under 42 U.S.C. § 1983. Pete's action with
regard to these defendants was properly dismissed.3
As to the other defendants, Perry, Cox, and Taylor, this
action must be dismissed in part on statute of limitations grounds
and in part on the merits.
In determining the limitations period for a section 1983
claim, we apply the applicable period provided by state law, in
this case the two-year Texas personal injury limitations period.
Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989). In
determining when Pete's cause of action accrued, however, we apply
federal law. Id. The federal standard provides that 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." Id.
Pete knew he had been subject to wrongful arrest and
confinement at the hands of Perry and Cox on May 12, 1985. Pete
3
Because we uphold the dismissal as to Taylor on other
grounds, we do not reach the question whether Pete's claims that
Taylor, as Samantha's guardian, aided Perry in convincing her to
testify against Pete while knowing that her accusations were
false state sufficient complicity between Taylor and a state
actor to render Taylor's actions "under color of state law"
within the meaning of Sparks.
6
admitted below that he became aware of his claims against Taylor
during his first trial, which took place later in 1985.4 In any
event, these facts were known to Pete more than two years before
October 16, 1989, the date Pete finally filed his section 1983
action. Unless the limitations period was tolled for some reason,
his claims against Perry, Cox, and Taylor would therefore be
barred.
Pete claims that the limitations period should be tolled until
the date of his final release from prison on November 26, 1987,
because of his imprisonment. The Supreme Court has held that for
section 1983 actions, the use of the state law limitations period
includes application of state tolling provisions for imprisonment.
Hardin v. Straub, 109 S.Ct. 1998, 2003 (1989).
Prior to September 1, 1987, Texas law recognized imprisonment
as a disability that would toll an otherwise applicable limitations
period. Tex. Civ. Prac. & Rem. Code Ann. § 16.001 (West 1985);
Burrell, supra, 883 F.2d at 418-19. However, Texas courts and this
Court uniformly held that tolling due to imprisonment under the
prior tolling statute ended on the date the plaintiff was first
released from prison. Glover v. Johnson, 831 F.2d 99, 100-101 (5th
Cir. 1987). Also, subsequent re-imprisonment did not thereafter
suspend the running of the limitations period. Tex. Civ. Prac. &
Rem. Code Ann. § 16.001(d) (West 1985). The statute of limitations
on Pete's claims against Perry and Cox started to run, therefore,
4
The exact dates of Pete's first trial are not contained in
the record before this Court.
7
not later than May 14, 1985, the date Pete was first released on
bail after his arrest.
Analysis of Pete's claims against Taylor is a bit more
complicated under this rule, however, because Pete apparently did
not discover Taylor's alleged participation in his prosecution
until sometime during his first trial, and because the record of
this case does not clearly establish whether Pete was ever out of
prison after learning of Taylor's involvement.
However, section 16.001 was amended in 1987 to omit
imprisonment as a disability that would toll a limitations period.
Tex. Civ. Prac. & Rem. Code Ann. § 16.001 (West Supp. 1987).
Burrell, supra, 883 F.2d at 419. Furthermore, section 65(a) of the
1987 act amending section 16.001 stated that:
"A period of limitations that on August 31, 1987,
was tolled under Section 16.001 or 16.022, Civil Practice
and Remedies Code, because the person entitled to bring
the action was imprisoned, begins to run on [September 1,
1987]." See Burrell, supra, 883 F.2d at 419 & n.3.
Therefore, whatever the previous tolling provisions of Texas
law, the limitations period for Pete's claims against Taylor, at
the very latest, began to run as of September 1, 1987. This means
that his section 1983 action, filed on October 16, 1989, came at
least forty-six days too late.5
5
In a supplemental brief filed in this Court after the filing
of his reply brief herein, Pete argues for the first time that
"the time in which his State court appeal was proceeding" should
be excluded in computing limitations under our decision in
Jackson v. Johnson, 950 F.2d 263 (5th Cir. 1992). We reject this
contention. In the first place, it was not raised below in
Pete's several responses to the defense motions to dismiss on the
basis of limitations. Moreover, it was raised too late in this
Court. In the second place, Pete's direct appeal was completed
8
Pete alleges one additional theory, however, that merits
discussion. Texas law has recognized the concept of "continuing
tort" in which tortious behavior is repeated or continues for a
period of time.6 In Adler v. Beverly Hills Hosp., 594 S.W.2d 153
(Tex. Civ. App. 1980, no writ), the plaintiff filed a false
imprisonment suit against a mental hospital more than two years
after his confinement began, but less than two years after it
ended. The court held that false imprisonment was a continuing
tort and thus for limitations purposes the claim accrued when the
well over two years before his section 1983 action was filed, so
exclusion of "the time in which his State court appeal was
pending," as Pete requests, would not alter the result. Finally,
Jackson is inapplicable for other reasons also.
In Jackson, a prisoner filed a section 1983 action within
the limitations period, but the district court found that the
action challenged the validity of his conviction (for which he
was still incarcerated) and was more properly styled as a
petition for habeas corpus. A petition for habeas corpus in
federal court requires that state habeas remedies be exhausted,
however, and so the federal section 1983 action was dismissed. It
was on these facts that this Court found later that under Texas
law the federal exhaustion requirement tolled running of the
limitations period until the state remedies had been exhausted.
Id. at 265-67.
Jackson is inapplicable to this case, however, because by
the time the section 1983 action here was filed, Pete had long
been out of prison and this action could not therefore be
construed as a habeas corpus petition. Furthermore, the Texas
tolling rule relied upon by the Jackson Court is inapplicable
because there were no pending legal proceedings that prevented
Pete from filing his section 1983 action long before limitations
expired. See id. at 265.
6
We note that this theory could only apply to Pete's post-
conviction incarceration. His original arrest and detention were
terminated by his release on bail pending his first trial. Any
action for false arrest or false imprisonment would therefore
have accrued, at the very latest, when he was released on bail
the second time on July 29, 1985. The limitations period had
long since run on these injuries by October 1989.
9
detention ended. The Adler court rejected the notion espoused by
other courts that a new and separate tort was committed on each day
that the detention continued. The court reasoned that such a
conceptual formulation would lead to a multiplicity of suits and
would complicate damage calculations. Instead, the court concluded
that the unlawful detention constituted a single, continuing tort
and that the most logical point to fix accrual was when the tort
was completed, i.e., when detention ended. Id. at 155-56. See
also Smith v. Avance, 553 F.Supp. 434 (E.D. Tex.) (applying Adler's
holding to a section 1983 claim for personal injury and wrongful
arrest and confinement), aff'd, 683 F.2d 415 (5th Cir.), cert.
denied, 103 S.Ct. 351 (1982).
The decision of when a false imprisonment claim accrues for
the purposes of bringing a section 1983 action in federal court is
a difficult one. Because Pete's post-conviction false imprisonment
claims may be dismissed on their merits, this case does not present
the proper circumstance to answer that question.
The elements of false imprisonment are (1) willful detention,
(2) without consent, and (3) without authority of law. Sears,
Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex. 1985). It is
also generally the rule that no action for false imprisonment will
lie where the detention was executed by virtue of legally
sufficient process duly issued by a court of competent
jurisdiction. Sanchez v. Garza, 581 S.W.2d 258, 259 (Tex. Civ.
App. 1979, n.w.h.). This is true where an arrest is pursuant to a
validly issued arrest warrant, see id., and must also be true
10
where, as here, Pete's two-year imprisonment was the result of a
judgment of conviction by a court with jurisdiction over him.7 See
also 32 Am. Jur. 2d, False Imprisonment, § 80; Restatement (Second)
of Torts, § 37, comment b; Prosser and Keeton on Torts (5th ed.
1984), § 11 at 54.
Nor does Pete's claim of malicious prosecution change the
result, because that claim, too, fails on its merits. The elements
of a malicious prosecution claim are: (1) a criminal action was
commenced against the plaintiff; (2) the prosecution was caused by
the defendant or with his aid; (3) the action terminated in
plaintiff's favor; (4) the plaintiff was innocent; (5) the
defendant acted without probable cause; (6) the defendant acted
with malice; and (7) the criminal proceeding damaged the plaintiff.
Brown v. United States, 653 F.2d 196, 198-99 (5th Cir. 1981), cert.
denied, 102 S.Ct. 1970 (1982). Pete fails to state a claim for
malicious prosecution because his prosecution ended with a plea of
nolo contendere and resulting conviction and thus the action did
not terminate in his favor. This bars any action for malicious
prosecution. See Brown v. Edwards, 721 F.2d 1442, 1448-49 n.8 (5th
Cir. 1984) and authorities there cited; Brummett v. Camble, 946
7
Of course, this analysis would not dispose of Pete's claim,
were he able to assert one, for the extension of his imprisonment
due to the TDC "hold" that was placed on him. However, this
claim would be against the TDC itself rather than Perry, Cox, or
Taylor, who are not alleged to have had anything to do with it,
and as we have already discussed, supra, the TDC is immune from
Pete's claims against it.
11
F.2d 1178, 1183-84 (5th Cir. 1991).8 Obviously, a conviction is
not a termination favorable to the accused. Even a dismissal
pursuant to a compromise is not.9
Conclusion
Pete's claims as to all the named defendants are either barred
or fail to state a claim on which relief can be granted.
Therefore, the judgment of the district court dismissing Pete's
section 1983 action is
AFFIRMED.
8
Under Brummett, the statute of limitations would not
commence to run on the malicious prosecution claim until Pete's
1987 conviction on his plea of nolo contendere. The exact date
of that conviction is not in this record.
9
"[D]ismissal of a criminal prosecution brought about by the
procurement or compromise of the person therein accused is not
such an end of the prosecution as will warrant an action for
damages for malicious prosecution." Ellis v. Sinton Savings
Ass'n, 455 S.W.2d 834, 842 (Tex. Civ. App. 1970, writ ref'd
n.r.e.). See also Restatement (Second) of Torts § 660(a); 32 Am.
Jur. 2d, Malicious Prosecution, § 43; Prosser and Keeton, § 119
at 875.
This Court has, in the past, reached the conclusion that so
long as a criminal conviction is valid, the criminal defendant is
collaterally estopped from bringing a section 1983 action based
on events surrounding the prosecution. See Martin v. Delcambre,
578 F.2d 1164, 1165 (5th Cir. 1978). See also Walker v.
Schaeffer, 854 F.2d 138, 140, 142-43 (6th Cir. 1988). However,
we do not rely on this theory because the Supreme Court's
decision in Haring v. Prosise, 103 S.Ct. 2368 (1983), handed down
after Martin, makes a collateral estoppel analysis turn on the
particular issues presented and whether they were litigated and
necessary to the decision in the state court proceedings.
12