United States Court of Appeals,
Fifth Circuit.
No. 93-1941.
Summary Calendar.
Curtis Lynn MOORE, Plaintiff-Appellant,
v.
Lynn McDONALD, Hood County Deputy Sheriff, Defendant-Appellee.
Sept. 1, 1994.
Appeal from the United States District Court for the Northern
District of Texas.
Before JOLLY, WIENER and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Appellant, Curtis Lynn Moore, was arrested for possession of
a controlled substance and detained, and following the dismissal of
criminal charges, brought an in forma pauperis action against
appellee, Deputy Sheriff Lynn McDonald, for violation of his civil
rights under 42 U.S.C. § 1983 (1988). Moore alleged that McDonald
falsely stopped, detained, searched, and arrested him, and gave
perjured testimony at a pretrial suppression hearing. The district
court granted summary judgment for McDonald on the perjury claim
and later dismissed the remainder of Moore's claims as frivolous
under 28 U.S.C. § 1915(d) (1988). Moore appeals, arguing that the
district court erred in holding that: (1) McDonald has absolute
immunity to Moore's § 1983 perjury claim; (2) Moore's Fourth
Amendment claims are frivolous under § 1915(d); and (3) Moore must
pay court costs. We affirm the judgment on Moore's perjury and
Fourth Amendment claims, and the judgment imposing costs on Moore.
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I
On May 10, 1988, Deputy Sheriff McDonald stopped Curtis Lynn
Moore for a traffic violation in Hood County, Texas. After seeing
a large hunting knife on the dashboard of Moore's vehicle, McDonald
asked Moore and his passengers to exit the car. McDonald proceeded
to search the vehicle for other weapons and, after finding
contraband, arrested and detained Moore for possession of a
controlled substance. Moore filed a motion to suppress the
evidence found in McDonald's search. At the suppression hearing,
McDonald testified that the only reason for stopping Moore's
vehicle was the violation of a traffic law, and the district court
denied Moore's motion. However, the State dropped its criminal
charges against Moore on December 14, 1988,1 because it learned
that McDonald had "potentially perjured himself at a pretrial
hearing." The written statements of a city police officer and a
Hood County jailer showed that Officer McDonald knew Moore was
driving the vehicle and did not stop him solely on the basis of a
traffic violation.
On November 19, 1990, Moore filed a § 1983 civil rights
action, alleging that McDonald unlawfully stopped, detained,
searched, and arrested him, and gave perjured testimony at the
pretrial suppression hearing. Moore sought monetary damages in
excess of $160,000, equitable relief, attorney's fees, and court
costs.
1
Although the criminal charges arising from this incident
were dropped, Moore is confined by the Texas Department of
Criminal Justice for reasons unrelated to this proceeding.
2
McDonald then moved for summary judgment. The district court
granted summary judgment on the perjury claim, stating that "§ 1983
does not authorize a claim for damages against a police officer for
allegedly giving perjured testimony." The district court relied on
Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96
(1983), where the United States Supreme Court held that police
officers are absolutely immune from § 1983 claims based on their
trial testimony. Id. at 326, 103 S.Ct. at 1110-11. However, the
district court denied summary judgment as to Moore's Fourth
Amendment and false imprisonment claims.
McDonald subsequently filed another summary judgment motion
alleging that Moore's Fourth Amendment and false imprisonment
claims were barred by the statute of limitations. The district
court denied McDonald's motion, but dismissed Moore's in forma
pauperis action sua sponte, because it was frivolous, under 28
U.S.C. § 1915(d). The district court reasoned that Moore's Fourth
Amendment and false imprisonment claims accrued on May 10, 1988—the
date of Moore's arrest and the search of his car, more than two
years before Moore filed his action—and were barred by the
applicable statute of limitations. The district court then entered
final judgment for McDonald and ordered Moore to pay court costs.
Moore appeals, contending that: (1) McDonald does not have
absolute immunity to Moore's § 1983 perjury claim; (2) Moore's
Fourth Amendment claims were not time barred, and therefore not
frivolous, under § 1915(d); and (3) court costs should not be
borne by Moore.
3
II
A
Moore argues that the district court erred by granting summary
judgment as to his perjury claim. In Briscoe, the United States
Supreme Court held that a police officer has absolute immunity from
§ 1983 perjury claims when testifying at a criminal trial. 460
U.S. at 326, 103 S.Ct. at 1110-11. However, the issue before this
court involves a police officer who allegedly perjured himself
during a pretrial suppression hearing. It is a question of first
impression in this Circuit whether a police officer's pretrial
suppression hearing testimony is absolutely immune from § 1983
perjury claims. See Foster v. City of Lake Jackson, Tex., 813
F.Supp. 1262, 1266 (S.D.Tex.1993) (stating that this Circuit has
not extended the privilege of absolute immunity to "witnesses who
testify in pretrial proceedings"), rev'd on other grounds, No. 93-
7196, 1994 WL 387970, --- F.3d ---- (5th Cir. July 27, 1994).
The Court in Briscoe, in determining that § 1983 did not
abrogate common law immunity, asserted that "[a] witness [at trial]
who knows that he might be forced to defend a subsequent lawsuit,
and perhaps to pay damages, might be inclined to shade his
testimony in favor of the potential plaintiff, to magnify
uncertainties, and thus to deprive the finder of fact of candid,
objective, and undistorted evidence." 460 U.S. at 333, 103 S.Ct.
at 1114. The result of such shaded testimony would be an
obstruction of "the paths which lead to the ascertainment of
truth." See id. at 333, 103 S.Ct. at 1114 (quoting Calkins v.
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Sumner, 13 Wis. 193, 197 (1860)).
The reason for granting absolute immunity to a witness
against claims arising from testimony "applies with equal force in
both trial and [adversarial] pretrial settings." Holt v.
Castaneda, 832 F.2d 123, 125 (9th Cir.1987), cert. denied, 485 U.S.
979, 108 S.Ct. 1275, 99 L.Ed.2d 486 (1988). "Whether testifying at
trial or in a pretrial proceeding, a witness who knows he may be
subjected to costly and time-consuming civil litigation for
offering testimony that he is unable to substantiate may
consciously or otherwise shade his testimony in such a way as to
limit potential liability." Id. Because of such natural
tendencies to shade testimony, witness immunity "is afforded to
encourage complete disclosure in judicial proceedings as a means
for ascertaining the truth, and, because of its common law roots,
is necessarily limited to witnesses in judge-supervised trials."
Krohn v. United States, 742 F.2d 24, 31 (1st Cir.1984). "The
thought is that witnesses should be encouraged to tell all they
know without fearing reprisal, because the tools of the judicial
process—rules of evidence, cross-examination, the fact-finder, and
the penalty of (criminal) perjury—will be able to uncover the
truth." Williams v. Hepting, 844 F.2d 138, 142 (3rd Cir.), cert.
denied, 488 U.S. 851, 109 S.Ct. 135, 102 L.Ed.2d 107 (1988).
Because these truth-finding tools of the judicial process are
present at adversarial pretrial suppression hearings, "[w]e see no
principled basis for distinguishing between the [adversarial]
pretrial proceedings and the trial on the merits in determining
5
whether absolute immunity should be granted to a police officer
witness." Holt, 832 F.2d at 125.
Furthermore, "[t]he great weight of lower court authority
holds that the functional approach dictates that absolute witness
immunity applies to testimony given at adversarial pretrial
criminal proceedings." Martin A. Schwartz & John E. Kirklin,
Section 1983 Litigation: Claims, Defenses, and Fees § 9.10, at 497
(2d ed. 1991); see Daloia v. Rose, 849 F.2d 74, 76 (2nd Cir.),
cert. denied, 488 U.S. 898, 109 S.Ct. 242, 102 L.Ed.2d 231 (1988)
(holding that absolute witness immunity applies to an adversarial
pretrial suppression hearing); Williams, 844 F.2d at 141
(extending "absolute immunity doctrine to a witness at the pretrial
stage of the judicial process"); Holt, 832 F.2d at 127
("[W]itnesses who testify in court at adversarial pretrial hearings
are absolutely immune from liability under section 1983 for damages
allegedly caused by their testimony.").
We have held that police officers do not have absolute
immunity from § 1983 claims where they perjure themselves at
pretrial probable cause hearings. Wheeler v. Cosden Oil and Chem.
Co., 734 F.2d 254, 261 (5th Cir.), modified on other grounds, 744
F.2d 1131 (1984). In Wheeler, we noted the "absence of
cross-examination at probable cause hearings," and asserted that
"the policy considerations applicable to ... testimony at a
probable cause hearing differ substantially from those relevant to
... testimony at a probable trial." Id. (quoting Briscoe, 460 U.S.
at 351, n. 10, 103 S.Ct. at 1124, n. 10 (Marshall, J.,
6
dissenting)). Testimony at adversarial pretrial suppression
hearings is distinguishable from testimony at nonadversarial
probable cause hearings because "[i]n adversarial pretrial
proceedings, as in trials, the witness testifies in court, under
oath, under the supervision of the presiding judge and is subject
to criminal prosecution for perjury." Holt, 832 F.2d at 125.
Therefore, our determination in Wheeler does not call into question
our conclusion that Briscoe applies to pretrial suppression
hearings.
Moore's pretrial suppression hearing was adversarial in
nature. McDonald was under oath, appeared before a judge on the
record, was cross-examined by Moore, and was subject to the penalty
of criminal perjury. Because McDonald's testimony at the
suppression hearing was subject to the same procedural safeguards
as trial testimony, we hold that McDonald's testimony is absolutely
immune from Moore's § 1983 claim.
Finally, in his brief Moore relies on Anthony v. Baker, 955
F.2d 1395 (10th Cir.1992), where the court held that "in the
context of a § 1983 claim for malicious prosecution, a complaining
witness is not absolutely immune for testimony given in a pre-trial
setting if that testimony is relevant to the manner in which the
complaining witness initiated or perpetrated the prosecution." Id.
at 1401. However, Anthony is not controlling, because Moore does
not allege a claim for malicious prosecution. Lack of probable
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cause to prosecute is an element of a malicious prosecution case.2
See Seven Elves, Inc. v. Eskenazi, 704 F.2d 241, 245 (5th
Cir.1983); Martin v. Thomas, 973 F.2d 449, 457 (5th Cir.1992).
Even construing Moore's complaint liberally and focussing on the
facts alleged, we find no allegation that there was a lack of
probable cause to prosecute the action. We therefore find that
Moore has not asserted a claim for malicious prosecution.
B
In his pro se complaint, which we must construe liberally,3
Moore presented two theories for relief under the Fourth Amendment.
Moore's principal allegation was that he was subjected to an
unreasonable stop because it was pretextual in nature, based on an
informant's tip, and not solely for the purpose of issuing a
traffic citation. Additionally, Moore alleged that the warrantless
search of his vehicle was unreasonable. He contended that after
Deputy McDonald confiscated the knife, further search of the
vehicle was unnecessary because Moore was twenty feet away from the
vehicle, and, thus, unable to threaten or injure McDonald.
Moore argues that the district court erred in dismissing his
claims as frivolous under 28 U.S.C. § 1915(d) because they were not
filed within the applicable limitations period. He asserts that
2
Probable cause means "the existence of such facts and
circumstances as would excite the belief, in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that
the person charged was guilty of the crime for which he was
prosecuted." Pendleton v. Burkhalter, 432 S.W.2d 724, 727
(Tex.Civ.App.—Houston [1st Dist.] 1968, writ ref'd n.r.e.).
3
See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-
96, 30 L.Ed.2d 652 (1972).
8
the district court erred because it incorrectly determined the
accrual date of his claims.
We review § 1915(d) dismissals for an abuse of discretion.
Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir.1993) (citation
omitted). A federal court may dismiss a claim in forma pauperis
"if satisfied that the action is frivolous or malicious." 28
U.S.C. § 1915(d) (1988). District courts may dismiss claims sua
sponte under § 1915(d) 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." Gartrell, 981
F.2d at 256. Because there is no federal statute of limitations
for § 1983 claims, district courts use the forum state's personal
injury limitations period. Id. Texas' general personal injury
limitations period is two years. See TEX.CIV.PRAC. & REM.CODE ANN. §
16.003(a) (Vernon 1986).
The district court found that Moore's illegal search claim
accrued on the date of the allegedly unreasonable search, or when
Moore purportedly sustained his injury—May 10, 1988. Therefore,
because Moore filed suit on November 19, 1990, the court dismissed
Moore's suit pursuant to § 1915(d) because the two-year statute of
limitations had run.
Although the Texas limitations period applies, federal law
governs when a § 1983 claim accrues, and "[u]nder federal law, a
cause of action accrues when the plaintiff knows or has reason to
know of the injury which is the basis of the action." Gartrell,
981 F.2d at 257. "The statute of limitations ... begins to run
9
when the plaintiff is in possession of the "critical facts that he
has been hurt and who has inflicted the injury....' " Id. (quoting
Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir.1980)). Moore
certainly possessed the "critical facts" concerning the allegedly
unreasonable search of the car on the day it occurred. Moore knew
that he was twenty feet away from the car, and unable to threaten
or harm Officer McDonald, when the car was searched. Thus, the
district court correctly concluded that Moore's claim as to the
allegedly unreasonable search of the car accrued on May 10, 1988,
when he became "aware that he ha[d] suffered an injury or ha[d]
sufficient information to know that he ha[d] been injured." Helton
v. Clements, 832 F.2d 332, 335 (5th Cir.1987) (footnote omitted).4
Moore also contends, however, that he was subjected to an
illegal pretextual stop in violation of the Fourth Amendment. In
United States v. Causey, 834 F.2d 1179 (5th Cir.1987) (en banc), we
held that "where police officers are objectively doing what they
are legally authorized to do ... the results of their
investigations are not to be called in question on the basis of any
subjective intent with which they acted." Id. at 1184; see Scott
v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56
L.Ed.2d 168 (1978) ("[T]he fact that the officer does not have the
state of mind which is hypothecated by the reasons which provide
the legal justification for the officer's action does not
invalidate the action taken as long as the circumstances, viewed
4
Of course, we express no opinion regarding whether
McDonald's search of Moore's vehicle actually amounted to a
constitutional violation.
10
objectively, justify that action.") It is undisputed that Deputy
McDonald, in stopping Moore for a traffic violation, was
objectively doing what he was legally authorized to do, whether he
was following a tip or not. Thus, even assuming arguendo that the
district court erred in determining the accrual date of Moore's
claim, we need not reach this issue because, under Causey, the
claim is without constitutional merit. We therefore find no abuse
of discretion by the district court. See Ali v. Higgs, 892 F.2d
438, 439 (5th Cir.1990) (affirming § 1915(d) dismissal for "reasons
different from those relied upon by the district court").
C
Moore also argues that the district court erred in ordering
that he pay court costs. He asserts that court costs should not
have been charged to him because he is proceeding in forma pauperis
and his complaint was timely filed. However, 28 U.S.C. § 1915(e)
(1988) provides that "[j]udgment may be rendered for costs at the
conclusion of the suit or action as in other cases...." § 1915(e)
affords the courts "discretionary power" to render judgment for
costs at the end of the action. See Lay v. Anderson, 837 F.2d 231,
232 (5th Cir.1988) (stating that a frivolous appeal is not a
necessary condition to taxing costs against an in forma pauperis
litigant). The fact that Moore's complaint was timely filed does
not establish an abuse of discretion. Moore's argument is without
merit.
III
For the foregoing reasons, we AFFIRM.
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