Armon v. Jones
| Decision Date | 23 February 1983 |
| Docket Number | No. CA3-80-1562-F.,CA3-80-1562-F. |
| Citation | 580 F. Supp. 917 |
| Parties | Thurman Wayne ARMON v. Clarence JONES. |
| Court | U.S. District Court — Northern District of Texas |
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Donald C. McLeaish, Duncanville, Tex., for plaintiff.
Sue Lagarde, Asst. Dist. Atty., Dallas, Tex., for defendant.
This cause of action is a complaint filed under the Civil Rights Act, 42 U.S.C. § 1983. The prisoner, Plaintiff Thurman Wayne Armon, has alleged that the prison conditions and classifications at the Dallas County Jail are improper which led to the physical beating inflicted on him. Plaintiff seeks monetary damages for the assault.
The background facts of the case are generally not in dispute. On or about February 10, 1975, the Plaintiff Armon was in the lawful custody of Clarence Jones, Sheriff of Dallas County, Texas. On that date, Plaintiff was transferred from tank 12-N-7 in the New Jail (classified for male felons, white/black, over 26 years of age, last names beginning A through J) to tank 6MN-1 in the Old Jail (classified for male felons, white, over 26 years, last names beginning with A through J). Apparently, the Plaintiff was moved in order to make room in the New Jail for additional prisoners. After the transfer and on the same day, Plaintiff was attacked by two other inmates, Michael Harp and Tommy J. Holt. No sheriff's department personnel witnessed or participated in the attack in question.
Plaintiff and both his attackers were white males, age 26, whose last names began with A through J. All three were awaiting trial for the following felonies: Armon, aggravated robbery; Harp, burglary of a habitation (habitual), burglary of a building (habitual), unauthorized use of a motor vehicle (habitual); Holt, aggravated robbery with a deadly weapon (2 cases), injury to a witness (federal charge). Plaintiff when placed in jail was also charged with unlawfully carrying a weapon (2 cases), violating the Controlled Substance Act (2 cases), driving while intoxicated, and passing worthless checks. At some point in time, all of these additional charges were either dismissed or discharged.
Plaintiff's prior adjudicated record at Dallas County Sheriff's Department included: drunk, 1964, sentenced to 7 days and $89.00; robbery with firearms reduced to theft under $50.00, 1969, sentenced to 6 months; theft under $50.00, 1969, sentenced to 50 days; driving while license suspended, 1969, sentenced to 30 days; driving while intoxicated, 1969, sentenced to 75 days. Plaintiff's record at the Sheriff's Department also had the following offenses which were either dismissed or disposition unknown: desertion of U.S. Army, 1960; simple assault, 1963; checks (Kansas) 1963; checks (Arkansas), 1963; vehicle theft, 1967; burglary, 1974; dangerous drugs, 1974.
The two attackers also had extensive records at the Sheriff's Department. Michael Harp was convicted of: auto theft, 1965, sentenced to 5 years; armed robbery reduced to aggravated assault with a deadly weapon, 1966, sentenced to 2 years; attempted burglary, 1972, sentenced to 2 years. Prior offenses either dismissed or disposition unknown included sodomy (juvenile), 1962. Tommy Holt was convicted of assault and battery, 1965, fined $20.00; destruction of private property, 1965, fined $20.00; second degree burglary (2 cases), 1967, sentenced to 5 years each; robbery with firearms, 1970, sentenced to 17 years. Other offenses of record but dismissed or disposition unknown included 13 miscellaneous Oklahoma violations.
Plaintiff made no complaint about his injuries to the sheriff's personnel after the attack until his condition was noted in the morning of February 11, 1975, by a jail guard who promptly took Plaintiff to the nurse's station. There does exist a dispute whether the jail guard or the Plaintiff's attorney first noted and reported Plaintiff's injuries. Plaintiff states that his attorney first reported his injuries although his attorney by sworn affidavit apparently refutes such statements. Regardless of who reported the attack, Plaintiff's medical treatment began as soon as he was taken to the nurse's station at the jail. A physician examined Plaintiff early the next morning, after which time the Plaintiff was transferred to Parkland Memorial Hospital. Plaintiff received plastic surgery treatment for these same injuries sustained in the attack, resulting in a stay of about two weeks in the hospital. After Plaintiff was transferred back to the jail, he was placed in the Jail's hospital ward for continued recuperation.
The attackers of Plaintiff were later formally charged. Michael Harp was indicted for the offense of assault to which he pled guilty and was sentenced to 10 years in the Texas Department of Corrections.
Plaintiff did not have his jury trial for the offense of aggravated robbery with a deadly weapon until after his hospitalization had ended. Plaintiff was convicted on October 23, 1975, and sentenced to 65 years in the Texas Department of Corrections on December 19, 1975. Plaintiff filed suit in this present case on November 25, 1980.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The burden of proof falls upon the party seeking summary judgment and all reasonable doubts as to the existence of a genuine issue of material fact are to be resolved against the moving party. Erco Industries, Ltd. v. Seaboard Coast Line R. Co., 644 F.2d 424, 428 (5th Cir.1981); Keiser v. Coliseum Properties, 614 F.2d 406, 410 (5th Cir.1980). Further, in considering such a motion, the district court must view the summary judgment evidence in the light most favorable to the nonmovant. Erco, supra at 428; Joplin v. Bias, 631 F.2d 1235, 1237 (5th Cir.1980).
Defendants have forcefully argued that the statute of limitations has effectively blocked the bringing of this suit. Plaintiff was injured while in the Dallas County Jail on February 10, 1975. Suit was not filed by the Plaintiff until November 25, 1980, almost five years after the cause of action arose.
The statute of limitations which is applicable in this case is TEX.REV.CIV.STAT. ann. Art. 5526, § 6 (Vernon's 1979) which reads:
Whether the tolling provision applies to this cause of action is one question before this Court.
In deciding if the tolling provision applies, this Court must apply state tolling provisions whenever state statutes of limitations are borrowed. Board of Regents of S.U.N.Y. v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). Miller v. Smith, 431 F.Supp. 821 (N.D.Tex.1977), vacated and remanded, 615 F.2d 1037 (5th Cir.1980). In other words, this Court must determine the status of Texas law on the question of whether the tolling statute applies to prisoners bringing § 1983 actions.
There have been a few Texas decisions at the court of appeals level, and none by the Supreme Court, construing art. 5535. Indications appear, however, that if the Supreme Court ruled on the matter, they would uphold the applicability of the statute. Several courts of civil appeals decisions point to this conclusion. In the case of Blum v. Elkins, 369 S.W.2d 810 (Tex. Civ.App.—Waco 1963, no writ), the Court held that the imprisonment of the Plaintiff did not toll the running of the statute of limitations. In this case, the Plaintiff knew four weeks before he was incarcerated that he would have to file suit. Such an opportunity to avail himself of the judicial system before imprisonment or custody overcame the disability to sue contemplated by the tolling provisions.
The application of the tolling provisions goes to the opposite extreme in the case of Jenkins v. State, 570 S.W.2d 175 (Tex.Civ. App.—Houston 14th Dist. 1978, no writ). The Court held that the statute of limitations was tolled during the period of the appellant's imprisonment and did not begin to run until after the release of the Plaintiff. The Plaintiff had filed suit within two years after his release but almost four years after his cause of action accrued while in prison.
Yet another set of circumstances are found when the Plaintiff files suit while still under the legal disability of imprisonment. Such facts existed in the case of Johnson v. McLean, 630 S.W.2d 790 (Tex. App.—Houston 1st Dist. 1982, no writ). The Plaintiff filed suit while in prison for a cause of action which accrued while in prison. Filing of suit was within the statute of limitation period but service of process was not properly executed within the limitation period. The Court held that the suit was properly dismissed. The Court reasoned that where a legally disabled party timely files suit despite the existence of the legal disability, the protective provisions of art. 5535 afterwards do not apply. Plaintiff had access to the courts...
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...as of August 31, 1987. See, e.g., Griffen v. Big Spring Indep. School Dist., 706 F.2d 645, 650 (5th Cir.1983); Armon v. Jones, 580 F.Supp. 917, 921 (N.D.Tex.1983). There are a few Texas appellate court decisions that pertain to Texas' prisoner tolling provision. In Blum v. Elkins, 369 S.W.2......
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