Burrell v. Newsome

• Decision Date: 19 September 1989
• Docket Number: No. 88-2883,88-2883
• Parties: Ellis D. BURRELL, Plaintiff-Appellant, v. Jimmy NEWSOME, Chief of Police, Port Arthur Police Dept., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 416

883 F.2d 416

Ellis D. BURRELL, Plaintiff-Appellant, v. Jimmy NEWSOME, Chief of Police, Port Arthur Police Dept., et al., Defendants-Appellees.

No. 88-2883

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Sept. 19, 1989.

Ellis D. Burrell, Tennessee Colony, Tex., pro se.

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

Before POLITZ, GARWOOD and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Ellis D. Burrell (Burrell) appeals from the district court's dismissal of his section 1983 case against appellees-defendants Jimmy Newsome, et al. (Newsome). The district court adopted the United States Magistrate's report, which concluded that Burrell's suit was barred by Texas' two-year statute of limitations for personal injury suits. The district court also concluded that no equitable tolling provisions applied. We remanded the case to the district court for a determination of whether the notice of appeal was timely. The magistrate, after an evidentiary hearing, determined that Burrell's notice of appeal was untimely. The district court adopted the magistrate's findings of fact and conclusions of law.

Facts and Proceedings Below

On September 16, 1987, Burrell filed this civil rights suit, pro se and in forma pauperis, pursuant to 42 U.S.C. Sec. 1983. Burrell named Chief of Police Jimmy Newsome, Officer Alfred J. Gillen, Jr., Officer Blanton, Officer Dyers, and Sergeant Williamson of the Port Arthur, Texas Police Department as defendants. Burrell alleges violations of his constitutional right to due process in that, in the summer of 1981, the defendants harassed him on numerous occasions prior to, during, and after his arrest on July 23, 1981. ¹ Burrell also claims that after his arrest some of the defendants denied him prescribed medication. Burrell also states, and there is no showing to the contrary, that he has been continuously incarcerated since the time of his arrest.

The district court referred the case to the magistrate for review. The magistrate concluded that Burrell's case was barred by Texas' two-year statute of limitations for personal injury actions. Tex.Civ.Prac. & Rem.Code Ann. Sec. 16.003(a) (Vernon 1986). The magistrate further concluded that no equitable tolling provisions applied to Burrell's claims. The district court adopted the magistrate's report and on August 9, 1988, filed its opinion and its judgment dismissing the suit before service of process under 28 U.S.C. Sec. 1915(d). The opinion and the judgment were entered on the docket on August 10, 1988. Burrell's notice of appeal was filed on September 19, 1988.

This Court thereafter remanded for a determination of whether the notice of appeal was timely filed under Houston v. Lack, --- U.S. ----, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Lack holds that a notice of appeal by a pro se prisoner will be deemed timely filed when delivered to the prison mail system, rather than when actually filed with the court. Lack, 108 S.Ct. at 2385. On remand the magistrate, after an evidentiary hearing, found that Burrell, who was incarcerated, delivered his notice of appeal to the prison mail officials on September 9, 1989, thirty-one days after the district court judgment filing date of August 9, 1988. Thus, the magistrate concluded that Burrell's notice of appeal was untimely. The district court adopted the magistrate's report and forwarded the findings of fact and conclusions to this Court.

Discussion

The magistrate and district court apparently overlooked the fact that while the district court's judgment was filed on August 9, 1988, it was not entered on the docket until August 10, 1988. The period for appeal begins to run from the date of entry of the judgment on the docket sheet, which in the instant case was August 10, 1988. See, e.g., United States v. Doyle, 854 F.2d 771, 772 (5th Cir.1988); Harcon Barge Co. v. D & G Boat Rentals, Inc., 746 F.2d 278, 282 (5th Cir.1984), reh'g en banc ordered as to Part III, reh'g otherwise denied, 760 F.2d 86 (5th Cir.1985), opinion en banc, 784 F.2d 665 (5th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). Burrell delivered his notice of appeal to the prison authorities on September 9, 1988, thirty days after the judgment was docketed. Therefore, in accordance with Lack, Burrell's appeal is timely. Lack, 108 S.Ct. at 2385.

The district court, sua sponte, applied the Texas two-year personal injury statute of limitations to bar Burrell's section 1983 claims. See Tex.Civ.Prac. & Rem.Code Ann. Sec. 16.003(a) (Vernon 1986). While this Court generally will not consider an affirmative defense not raised below, we are not prevented from considering the defense where it is raised sua sponte by the district court. See, e.g., Baylor Univ. Medical Center v. Heckler, 758 F.2d 1052, 1057 n. 8 (5th Cir.1985).

Because there is no specified federal statute of limitations for section 1983 suits, federal courts borrow the forum state's general personal injury limitations period. See Owens v. Okure, --- U.S. ----, 109 S.Ct. 573, 582, 102 L.Ed.2d 594 (1989); Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir.1989). While the limitations period is determined by reference to state law, the standard governing the accrual of a cause of action under section 1983 is determined by federal law. See, e.g., Watts v. Graves, 720 F.2d 1416, 1423 (5th Cir.1983); Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir.1980). The standard provides " 'that the time for accrual is when the plaintiff knows or has reason to know of the injury which is the basis of the action.' " Listi, 611 F.2d at 1131 (quoting Cox v. Stanton, 529 F.2d 47, 50 (4th Cir.1975)); see, e.g., Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir.1988); Longoria v. Bay City, 779 F.2d 1136, 1138 (5th Cir.1986). Burrell's pleadings reveal that he was fully aware that he had suffered injury at the time the incidents occurred in 1981. In the absence of any tolling provision, Burrell's 1987 complaint was filed several years too late.

Burrell's main argument on appeal is that the statute of limitations should be tolled in his case pursuant to section 16.001 of the Texas Civil Practice and Remedies Code because he was imprisoned at the time he filed his complaint and he has been continuously incarcerated since his July 23, 1981 arrest. Tex.Civ.Prac. & Rem.Code Sec. 16.001 (West Supp.1989) (as amended in 1987). The Supreme Court, in its recent opinion, Hardin v. Straub, --- U.S. ----, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989), held that a federal court applying a state statute of limitations should give effect to the state's tolling provisions for prisoners. See Straub, 109 S.Ct. at 2003.

Section 16.001 of the Texas Civil Practice and Remedies Code, when enacted in 1985, provided as follows:

"Sec. 16.001. Effect of Disability

"(a) For the purposes of this subchapter, a person is under legal disability if the person is:

"(1) younger than 18 years of age, regardless of whether the person is married;

"(2) imprisoned; or

"(3) of unsound mind.

"(b) If a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period.

"(c) A person may not tack one legal disability to another to extend a limitations period.

"(d) A disability that arises after a limitations period starts does not suspend the running of the period." Tex.Civ.Prac & Rem.Code Ann. Sec. 16.001; Acts 1985, 69th Leg., ch. 959, Sec. 1. ²

Section 16.001 was amended in 1987, and effective September 1, 1987, imprisonment is no longer considered a legal disability in Texas. See Acts 1987, 70th Leg., ch. 1049, Sec. 56; Tex.Civ.Prac. & Rem.Code Ann. Sec. 16.001 (West Supp.1989). However, another section of the 1987 amendatory act provides that if a period of limitations was tolled on August 31, 1987, because the person bringing the action was imprisoned, the limitations period for the action begins to run on September 1, 1987. ³ See Acts 1987, 70th Leg., ch. 1049, Sec. 65. Thus, if the limitations period was tolled for Burrell because of his imprisonment as of August 31, 1987, the beginning of the two-year limitations period was September 1, 1987, and Burrell timely filed this suit on September 17, 1987. We look to the Texas courts' construction of Texas' tolling statute to determine if Burrell was under a legal disability due to his incarceration 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.2d 810 (Tex.Civ.App.--Waco 1963, no writ), the court held that the imprisonment of the plaintiff did not toll the statute of limitations because the plaintiff knew prior to incarceration of the facts underlying his claim and that he would have to file suit. Blum, 369 S.W.2d at 812-13 (citing Tex.Rev.Civ.Stat.Ann. art. 5535 (1925)). The period of limitations began to run at the time the prisoner knew of the injury prior to his incarceration, and it is well settled that "[o]nce the statute has commenced to run, it is not tolled by imprisonment." Id. (citing Tex.Rev.Civ.Stat.Ann. art. 5544 (1925)).

In Jenkins v. State, 570 S.W.2d 175 (Tex.Civ.App.--Houston [14th Dist.] 1978, no writ), the alleged injury occurred on March 9, 1974, while the plaintiff was imprisoned. The plaintiff was released from prison on September 9, 1974, and he filed his lawsuit relating to the March 9 incident on May 25, 1976. Id. at 177. The court held that the statute of limitations was tolled during the prisoner's incarceration and the period of limitations began to run upon the prisoner's release from confinement. Id. (citing Tex.Rev.Civ.Stat.Ann. art. 5535 (Supp.1978)). Thus, the prisoner's suit was timely filed within the two-year...