Brandley v. Keeshan

• Decision Date: 15 September 1995
• Docket Number: No. 94-20293,94-20293
• Citation: 64 F.3d 196
• Parties: Clarence Lee BRANDLEY, et al., Plaintiffs-Appellants, v. James KEESHAN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 196

64 F.3d 196

Clarence Lee BRANDLEY, et al., Plaintiffs-Appellants, v. James KEESHAN, et al., Defendants-Appellees.

No. 94-20293.

United States Court of Appeals Fifth Circuit.

Sept. 15, 1995.

Marc D. Murr, Houston, TX, for plaintiffs-appellants.

Steve McKeithen, Asst. County Atty., Frank H. Bass, Jr., Conroe, TX, for James Keeshan, et al.

Sharon Felfe, Dan Morales, Atty. Gen., Austin, TX, for State of Texas, et al.

Marjorie A. Meyers, Bennett & Secrest, Houston, TX, for John Martin.

Tina Snelling, Hirsch, Glover, Robinson & Sheiness, Houston, TX, for the City of Conroe.

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

Before REYNALDO G. GARZA, HIGGINBOTHAM and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Appellants, Clarence Lee Brandley, along with his two adult children, filed suit on behalf of themselves and Brandley's minor children (referred to collectively as "Brandley") pursuant to 42 U.S.C. Secs. 1981, 1982, 1983, and 1985, and Texas law against various Texas state and local agencies and officials. The district court granted the FED.R.CIV.P. 12(b)(6) Motion to Dismiss of all but three of the defendants in October 1993, and set the remainder of the case for trial. Brandley appeals the dismissal order. We affirm in part and remand.

FACTS

Clarence Lee Brandley was tried twice in the state district court of Montgomery County, Texas for the rape and murder of a sixteen year old student, Cheryl Ferguson, which occurred on August 23, 1980. The On December 6, 1991, Brandley filed this suit seeking an award of money damages and an injunction against further civil or criminal investigations or prosecutions stemming from the Ferguson murder. His complaint named as defendants James Keeshan, Jerry Winfree and Peter Speers, prosecutors with the Montgomery County District Attorney's Office (DA), and Charlie Ray, the DA's investigator; the State of Texas, the Texas Rangers and the Texas Department of Public Safety; John Styles, a criminal investigator; the Texas Department of Corrections, and its director Andy Collins in his official and individual capacities; Conroe Independent School District; Montgomery County, its sheriff's and constable's offices, and Sheriff Joseph Corley in his official and individual capacities; District Clerk Peggy Stevens in her official and individual capacities; State District Judge Jon Martin; the City of Conroe and the Conroe Police Department, as well as Marty Koerner, J.P. Bailey, Gene Reeves and Charlie Hayden.

first trial ended in a hung jury, but Brandley was convicted of capital murder and sentenced to death at the second trial. On direct appeal, the Texas Court of Criminal Appeals affirmed Brandley's conviction, holding that the evidence was sufficient to support the verdict. Brandley v. State, 691 S.W.2d 699 (Tex.Crim.App.1985). However, on December 13, 1989, after Brandley had been incarcerated on Texas Death Row for almost seven years, the Texas Court of Criminal Appeals granted Brandley's petition for writ of habeas corpus, finding that the prosecution's suppression of evidence and improper investigation of the case violated Brandley's due process rights. Ex parte Brandley, 781 S.W.2d 886 (Tex.Crim.App.1989), cert. denied, 498 U.S. 817, 111 S.Ct. 61, 112 L.Ed.2d 35 (1990). Brandley's conviction was set aside and he was released to the sheriff of Montgomery County to answer the original indictment. Brandley has not been retried for Ferguson's rape and murder.

STANDARD OF REVIEW

In reviewing a Rule 12(b)(6) dismissal, this Court accepts "all well pleaded averments as true and view[s] them in the light most favorable to the plaintiff." Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir.1991). A dismissal will be upheld if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id.

STATUTE OF LIMITATIONS

The district court denied a motion by defendants to dismiss Brandley's Sec. 1983 claims, finding that they accrued in 1989 when his conviction was overturned, which was less than two years before he filed the instant suit. The district court next held that Brandley's state law causes of action for negligence, intentional and negligent infliction of emotional distress, false arrest/false imprisonment, assault, battery, defamation, invasion of privacy, and tortious interference with contractual relationships were time barred, noting that his state law claim for malicious prosecution was not time barred. The district court reasoned that these claims were "not implicated" in his habeas petition, and more than two years had run, un-tolled, since they accrued.

Brandley does not dispute that the state claims are governed by the two-year Texas statute of limitations set out in TEX.CIV.PRAC. & REM.CODE Sec. 16.003 and that, generally, a cause of action arises "when a plaintiff knows or has reason to know of the injury which is the basis of the action." Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir.1989).

Up until September 1, 1987, Texas law considered imprisonment a disability that tolled the running of the limitation period. See former TEX.REV.CIV.STAT.ANN. Art. 5535 (Vernon) (repealed). When Texas repealed that rule in 1987, Brandley had already filed his writ, containing the factual allegations that serve as the basis for his present claims. The district court held that the pendency of Brandley's habeas petition tolled the statute of limitation on his Sec. 1983 claims until December 13, 1989, the date the Court of Criminal Appeals set aside his convictions. However, the district court viewed Brandley's state law causes of action as discrete, non-constitutionally-based wrongs that were not implicated in Brandley's habeas petition.

For that reason, the court found that Brandley "knew" of the injuries he now complains of when the legislature repealed the disability of incarceration on September 1, 1987 and the limitations period began to run on his state law claims on that date, so that the 1991 lawsuit was outside the two year statute of limitations.

Brandley complains that the district court relied on McCune v. Grand Rapids, 842 F.2d 903 (6th Cir.1988), which does not control this Court, and which can be distinguished on its facts. McCune was cited by the district court for the proposition that Brandley's Sec. 1983 claims survived the limitations analysis, not that his state claims did not survive, so that any error benefitted Brandley. We find no cause for reversal in this argument.

He also argues that his minor children's claims would not have accrued until two years after each of them reached the age of majority. Because their claims are derivative of Brandley's, their claims will be time barred when his are barred. Cf. Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex.1992). This argument is also without merit.

Finally, Brandley argues that his state law claims are not time barred under the analysis of Robinson v. Maruffi, 895 F.2d 649 (10th Cir.1990), which held that a conspiracy made up of discrete acts such as false arrest and false imprisonment was essentially part of a malicious prosecution claim, and therefore accrued at the same time as that claim. We agree with Brandley to the extent that his state law causes of action for false arrest and false imprisonment accrued at the same time as his claim for malicious prosecution. However, we disagree with the analysis used by the district court to decide when those claims accrued.

The underlying criminal proceeding must terminate in the plaintiff's favor before a malicious prosecution claim accrues. Heck v. Humphrey, --- U.S. ----, ----, 114 S.Ct. 2364, 2374, 129 L.Ed.2d 383 (1994); See also Brummett v. Camble, 946 F.2d 1178, 1183 (5th Cir.1991) cert. denied, 504 U.S. 965, 112 S.Ct. 2323, 119 L.Ed.2d 241 (1992) (discussing the constitutional tort of malicious prosecution in the context of a claim brought pursuant to 42 U.S.C. Sec. 1983.) Brandley has the burden of establishing that the capital murder prosecution has terminated. Typically the burden is met by proving that the state court with jurisdiction has so ruled. An acquittal, an order of dismissal based on the running of the statute of limitations on the crime or an order of dismissal reflecting an affirmative decision not to prosecute are examples of such a termination. A successful writ of habeas corpus may, in some instances, terminate a criminal prosecution in the defendant's favor. Even a prosecutor's failure to act on remand will at some point entitle a defendant to an order of dismissal. ¹ However, the reversal of a conviction and remand for new trial is not, in and of itself, a termination.

There is no statute of limitations in Texas on capital murder, and there has been no acquittal in this case. Whether this proceeding has terminated in Brandley's favor is a factual question that must be answered in the first instance by the district court. ² We cannot determine from the record before us whether the capital murder proceeding against him has terminated. We therefore reverse the district court's order to the extent that it held that Brandley's state law causes of action for false arrest and false imprisonment were barred by the statute of limitations, and remand for the district court to determine if and when the criminal prosecution terminated in Brandley's favor.

SOVEREIGN IMMUNITY--STATE OF TEXAS

The district court held that all of Brandley's claims against the State of Texas In the absence of consent, a suit in which the State or one of its agencies is named as a defendant is proscribed by the Eleventh Amendment. Civil rights statutes, particularly 42 U.S.C. Sec. 1983, do not abrogate state Eleventh Amendment immunity. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984). Brandley has made no argument, and we apprehend none, that would bring this case...