Case: 11-40160 Document: 00511698107 Page: 1 Date Filed: 12/16/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 16, 2011
No. 11-40160 Lyle W. Cayce
Clerk
MOHAMMED A. ALY,
Plaintiff - Appellant
v.
CITY OF LAKE JACKSON,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
U.S.D.C. No. 3:09-CV-274
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
We AFFIRM the district court’s grant of summary judgment for Defendant
City of Lake Jackson on the ground that Plaintiff Mohammed A. Aly’s complaint
was barred by the statute of limitations.
Aly operates a retail store in Lake Jackson. On two occasions in
October 2006, the City’s police department sent a person to pose as a customer
at Aly’s store and to make purchases using a credit card with someone else’s
name on it. Aly allowed the person to use the credit card to make the purchases.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-40160 Document: 00511698107 Page: 2 Date Filed: 12/16/2011
No. 11-40160
Under Texas law, furnishing goods to someone using a credit card in someone
else’s name and without the cardholder’s consent, with the intent to defraud the
card issuer or cardholder, constitutes the crime of “credit card abuse.” Tex. Pen.
Code § 32.31(b)(10). On January 26, 2007, Aly was arrested and charged with
credit card abuse; the following day he was released on bond; and on March 31,
2008, the charges against him were dismissed.
On November 16, 2009, Aly filed a complaint in federal district court. His
complaint alleged, in pertinent part, that the City:
violated 42 U.S.C. Sec. 1983 by engaging in, or tolerating a
governmental policy or custom of depriving certain classes of
citizens, including plaintiff, of constitutional right to equal
protection of the laws. The governmental policy or custom of which
plaintiff complains was a policy or custom of targeting minority
classes, including plaintiff, for prosecution and which resulted in a
deprivation of his constitutional right to equal protection of the
laws.
Aly’s complaint also asserted “state law claims of malicious prosecution and false
imprisonment.” However, Aly later stipulated that he was no longer pursuing
those claims.
The City moved for summary judgment, contending that Aly’s complaint
was barred by the statute of limitations. It is undisputed that the applicable
statute of limitations for § 1983 claims is the state’s general personal injury
limitations period, which in Texas, is two years. See Wallace v. Kato, 549 U.S.
384, 387 (2007) (“[T]he length of the statute of limitations” for § 1983 claims “is
that which the State provides for personal-injury torts.”); Tex. Civ. Prac. & Rem.
Code § 16.003(a). The City argued that Aly’s claim accrued at the latest on
January 27, 2007, when Aly was released on bond, and thus, Aly’s complaint,
which was filed on November 16, 2009, was untimely. Aly argued that his
complaint was timely because his claim accrued when the criminal charges were
dismissed on March 31, 2008. The district court held that Aly’s claim accrued
2
Case: 11-40160 Document: 00511698107 Page: 3 Date Filed: 12/16/2011
No. 11-40160
when he was arrested on January 26, 2007, and thus, that his complaint was
barred by the two-year statute of limitations. Aly timely appealed.
“We review the district court’s conclusion that [Aly’s] claim is time-barred
de novo.” Mapes v. Bishop, 541 F.3d 582, 583 (5th Cir. 2008) (citing Price v. City
of San Antonio, Tex., 431 F.3d 890, 892 (5th Cir. 2005)).
The only issue in this appeal is when Aly’s § 1983 cause of action accrued.
“[T]he accrual date of a § 1983 cause of action is a question of federal law that
is . . . governed by federal rules conforming in general to common-law tort
principles. Under those principles, it is the standard rule that [accrual occurs]
when the plaintiff has a complete and present cause of action, that is, when the
plaintiff can file suit and obtain relief.” Wallace, 549 U.S. at 388 (alteration in
original) (internal quotation marks and citations omitted). It is necessary, then,
to first determine the common law “tort [that] provides the proper analogy to the
cause of action asserted.” Id. at 389 (citing W. Page Keeton et al., Prosser and
Keeton on the Law of Torts §§ 11, 119, at 54, 885-886 (5th ed. 1984)).
If Aly’s cause of action is analogous to the common law tort of malicious
prosecution, then his complaint would have been timely because a malicious
prosecution claim only accrues once the criminal charges are dismissed. See
Heck v. Humphrey, 512 U.S. 477, 484 (1994) (“One element that must be alleged
and proved in a malicious prosecution action is termination of the prior criminal
proceeding in favor of the accused.” (citing Prosser and Keeton, supra, § 119, at
874)). However, Aly’s claim is not analogous to malicious prosecution because
the claim of malicious prosecution requires proof “that the criminal proceeding
was initiated or continued by the defendant without ‘probable cause.’” Prosser
and Keeton, supra, § 119, at 876; see also Heck, 512 U.S. at 484 & n.4; id. at 494
(Souter, J., concurring in the judgment). “This is true even though the
defendant is found to have acted with ‘malice,’ [i.e.,] for an improper
purpose . . . .” Prosser and Keeton, supra, § 119, at 876. Here, Aly has not
3
Case: 11-40160 Document: 00511698107 Page: 4 Date Filed: 12/16/2011
No. 11-40160
alleged that the City initiated or continued the criminal proceedings against him
without probable cause. Instead, Aly has only asserted that the City targeted
and prosecuted him for an improper purpose, i.e., because of his ethnicity.
Therefore, Aly’s claim is not analogous to malicious prosecution.
Aly’s cause of action is, however, analogous to the common law tort of
abuse of process.
Abuse of process differs from malicious prosecution in that the gist
of the tort is not commencing an action or causing process to issue
without justification, but misusing, or misapplying process justified
in itself for an end other than that which it was designed to
accomplish. The purpose for which the process is used, once it is
issued, is the only thing of importance. Consequently in an action
for abuse of process it is unnecessary for the plaintiff to prove that
the proceeding has terminated in his favor, or that the process was
obtained without probable cause or in the course of a proceeding
begun without probable cause.
Prosser and Keeton, supra, § 121 at 897 (footnotes omitted); see also Rose v.
Bartle, 871 F.2d 331, 350 n.17 (3d Cir. 1989) (“In contrast to a section 1983 claim
for malicious prosecution, a section 1983 claim for malicious abuse of process lies
where prosecution is initiated legitimately and thereafter is used for a purpose
other than that intended by the law.” (internal quotation marks omitted)). This
tort provides a better analogy for Aly’s claim than malicious prosecution. See
Heck, 512 U.S. at 495 n.2 (Souter, J., concurring in the judgment) (“[D]epending
on the nature of the underlying right alleged to have been violated (consider, for
example, the right not to be selected for prosecution solely because of one’s race),
the tort of abuse of process might provide a better analogy to a § 1983 claim for
unconstitutional conviction or confinement than the malicious-prosecution tort.”
(citing Prosser and Keeton, supra, § 121 at 897)).
Thus, Aly’s claim accrued on January 26, 2007, when he was arrested and
charges against him were brought. See Wallace, 549 U.S. at 388 (“[I]t is the
standard rule that [accrual occurs] when the plaintiff has a complete and present
4
Case: 11-40160 Document: 00511698107 Page: 5 Date Filed: 12/16/2011
No. 11-40160
cause of action.”); Prosser and Keeton, supra, § 121 at 897 (“[I]n an action for
abuse of process it is unnecessary for the plaintiff to prove that the proceeding
has terminated in his favor, or that the process was obtained without probable
cause or in the course of a proceeding begun without probable cause.”); see also
Rose, 871 F.2d at 350 (“[A] section 1983 claim for false arrest accrues on the date
of the arrest, as does a section 1983 claim for abuse of process, because on that
date a plaintiff would have reason to know of the injury which those two torts
encompass.” (internal quotation marks omitted)). Aly’s complaint, however, was
not filed until November 16, 2009, more than two years after his claim accrued.
Therefore, Aly’s complaint is barred by Texas’ statute of limitations.
On appeal, Aly’s attorney asserts that his claim did not accrue until
March 31, 2008, when the criminal charges against him were dismissed.
However, Aly’s attorney fails to provide any argument to support that
contention, and fails to cite any case law or even to distinguish the cases that the
district court relied on in granting summary judgment. Therefore, Aly’s attorney
has waived that contention. Fed. R. App. P. 28(a)(9)(A) (Appellant’s brief must
contain “contentions and the reasons for them, with citations to the authorities
and parts of the record on which the appellant relies.”); see also United States v.
Thames, 214 F.3d 608, 612 n.3 (5th Cir. 2000) (where a party fails to adequately
brief an issue, the issue is waived).
The judgment of the district court granting summary judgment for the
City is AFFIRMED.
5