Bryant v. Potts, 75--4180
| Citation | 528 F.2d 621 |
| Decision Date | 15 March 1976 |
| Docket Number | No. 75--4180,75--4180 |
| Parties | Tommy English BRYANT, Plaintiff-Appellant, v. W. E. POTTS, et al., Defendants-Appellees. Summary Calendar. * |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Tommy English Bryant, pro se.
N. Alex Bickley, City Atty., Joseph G. Werner, Asst. City Atty., Dallas, Tex., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before AINSWORTH, CLARK and RONEY, Circuit Judges.
This is an action for damages brought pro se by an inmate of a state correctional institution under 42 U.S.C.A. § 1983. Plaintiff alleges that property belonging to him was unlawfully seized and retained by defendant police officers.
The complaint was dismissed by the district court upon the motion of defendant police officers because it was not filed within the applicable two year limitation period.
The limitation period for filing an action under 42 U.S.C.A. § 1983 must be determined by reference to the limitation period prescribed by the law of the state where the litigation arose. Boshell v. Alabama Mental Health Bd., 473 F.2d 1369, 1370 (5th Cir. 1973).
The district court appears to have correctly applied the two year statute to this action. Vernon's Tex.Rev.Civ.Stat.Ann. Art. 5526(1), (2). Plaintiff alleges he was arrested and his property unlawfully seized December 16, 1969. His complaint was not filed in the district court until September 15, 1975, beyond the two year period.
Plaintiff maintains that the two year time period was interrupted while he sought various administrative remedies. It is not necessary, however, to exhaust administrative remedies before an action of this kind can be filed. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Hardwick v. Ault, 517 F.2d 295 (5th Cir. 1975). Therefore, pursuing administrative remedies would not interrupt the limitation period.
Neither the pro se plaintiff nor the attorneys for the defendant police officers appear to have called to the attention of the district judge the Texas statute, Article 5535, which provides that:
If a person entitled to bring any action mentioned in this subdivision of this title be at the time the cause of action accrues . . . a person imprisoned . . ., the time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same time after the removal of his disability that is allowed to others by the provisions of this...
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Richardson v. Fleming
...cert. denied, 429 U.S. 1102, 97 S.Ct. 1127, 51 L.Ed.2d 552 (1977); Grundstrom v. Darnell, 531 F.2d 272 (5th Cir. 1976); Bryant v. Potts, 528 F.2d 621 (5th Cir. 1976). However, more recent decisions have held Article 5535 does not or may not apply. Miller v. Smith, 431 F.Supp. 821 (N.D.Tex.1......
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Patsy v. Florida Intern. University
...exhaustion since the majority makes pursuit of state administrative remedies a prerequisite to federal suit. See, e. g., Bryant v. Potts, 528 F.2d 621 (5th Cir. 1976). If the plaintiff loses on every point of the state administrative claim, since neither res judicata nor collateral estoppel......
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Miller v. Smith, 77-2610
...there have been a few cases which peripherally approached it, this issue has not been precisely decided in this Circuit. Bryant v. Potts, 528 F.2d 621 (5 Cir., 1976) was a pro se prisoner suit, 42 U.S.C., Section 1983, alleging that property belonging to the plaintiff had been unlawfully se......
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Johnson v. City of Bessemer
...administrative remedies is not a prerequisite to filing suit. For instance, in the earliest case addressing this issue, Bryant v. Potts, 528 F.2d 621 (5th Cir.1976), the former Fifth Circuit in held that the plaintiff's pursuit of administrative remedies would not interrupt the limitations ......