Ali v. Higgs, 89-1981

• Decision Date: 25 January 1990
• Docket Number: No. 89-1981,89-1981
• Citation: 892 F.2d 438
• Parties: Bilal Muhammad ALI, Plaintiff-Appellant, v. Max HIGGS, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 438

892 F.2d 438

Bilal Muhammad ALI, Plaintiff-Appellant, v. Max HIGGS, et al., Defendants-Appellees.

No. 89-1981

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Jan. 25, 1990.

Bilal Muhammad Ali, Palestine, Tex., pro se.

No appearance for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before WILLIAMS, HIGGINBOTHAM, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The plaintiff, Bilal Muhammad Ali, appeals from the district court's dismissal without prejudice, under 28 U.S.C. § 1915(d), of his civil rights complaint filed in forma pauperis and pursuant to 42 U.S.C. § 1983. For reasons different from those relied upon by the district court, we affirm the dismissal but modify it so that it is a dismissal with prejudice.

The instant complaint was filed in 1989 and concerns events related to a 1982 arrest. The district court dismissed on the ground that since Ali was still in custody for a conviction arising out of that arrest, he must exhaust his habeas corpus remedies as a predicate to pursuing a civil rights suit. On appeal, Ali asserts that he has in fact exhausted his state and federal habeas remedies. We need not address the validity of this contention, however, as Ali also avers, in his brief on appeal, that his current confinement results from a conviction that is unrelated to the arrest of which he complains and is for an offense committed in a county different from that of the 1982 arrest.

Thus, we are presented with a suit filed in 1989 on the basis of an incident occurring in 1982. On its face, the action appears to be barred by the applicable statute of limitations. It is well established that federal courts borrow the forum state's general personal injury limitations period. Owens v. Okure, --- U.S. ----, 109 S.Ct. 573, 582, 102 L.Ed.2d 594 (1989); Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir.1989). In Texas, the applicable period is two years. Tex.Civ.Prac. & Rem.Code Ann. § 16.003(a) (Vernon 1986).

Here, the running of the statute was never tolled by imprisonment under the Texas tolling statute, as it existed in 1982, see former Tex.Rev.Civ.Stat.Ann. art. 5535, because Ali was not convicted, and hence was never imprisoned, for the 1982 incident. Hence, under article 5535, he was not under a legal disability when the cause of action accrued in 1982.

Also, as we have explained in Burrell v. Newsome, 883 F.2d at 419 n. 3, the successor statute to article 5535, Tex.Civ.Prac. & Rem.Code Ann. § 16.001, was amended, effective September 1, 1987, to delete imprisonment as a disability in regard to the running of limitations and to provide that a period that was tolled as of August 31, 1987, began to run on September 1, 1987. ¹ Ali's suit was filed on October 6, 1989. So even if, arguendo, limitations was tolled as of August 31, 1987, more than two years elapsed thereafter before Ali filed the instant suit.

We note as well, to make the history of the instant matter complete, that this is far from Ali's first visit to the federal courthouse. In 1985, he filed a civil rights complaint regarding the 1982 arrest; it was dismissed when Ali failed to respond to the district court's order to file a more definite statement. In 1988, he filed a second complaint regarding the events of 1982; the district court dismissed on the ground of res judicata, and we affirmed. See Ali v. Pennock, 866 F.2d 1418 (5th Cir.1989) (per curiam) (unpublished). Now, Ali appears to desire a third bite at the apple.

Although the defenses of limitations and res judicata are obvious here, we are faced with the maxim that such matters are affirmative defenses that usually must be raised by the defendants in the district court. FMC Finance Corp. v. Murphree, 632 F.2d 413, 419 (5th Cir.1980). In Burrell, 883 F.2d at 418, we noted an exception to that rule, to-wit, that we can consider a defense on appeal where it has been raised sua sponte by the district court.

Here, the district court dismissed the complaint on other grounds and did not consider the viability of the res judicata or limitations defense. However, we conclude that in an action proceeding under section 1915(d), we may consider, sua sponte, affirmative defenses that are apparent from the record even where they have not been addressed...