Glover v. Johnson

• Decision Date: 04 November 1987
• Docket Number: No. 87-1101,87-1101
• Citation: 831 F.2d 99
• Parties: Johnny R. GLOVER, Plaintiff-Appellant, v. R.C. JOHNSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 99

831 F.2d 99

Johnny R. GLOVER, Plaintiff-Appellant, v. R.C. JOHNSON, Defendant-Appellee.

No. 87-1101

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Nov. 4, 1987.

Johnny R. Glover, pro se.

Kent S. Hofmeister, City Atty., Katherine Knight, Asst. City Atty., Dallas, Tex., for defendant-appellee.

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

Before POLITZ, JOHNSON and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

Complaining that his civil rights were violated during the course of his arrest by Dallas police, Johnny R. Glover invoked 42 U.S.C. Sec. 1983 and filed the instant suit. The district court found the action barred by the statute of limitations and granted defendant's motion for summary judgment. We agree and affirm.

Background

Glover was arrested on May 27, 1983 on a charge of aggravated robbery. He claims that the defendant, R.C. Johnson, a Dallas police officer, used excessive force during the arrest. On October 5, 1983 Glover was found guilty of aggravated robbery and was sentenced to imprisonment for 75 years. On that same day Glover escaped from custody, remaining at large until arrested for burglary and robbery in Minneapolis on January 27, 1984. He was returned to Texas. On January 22, 1986, Glover filed his Sec. 1983 complaint.

Analysis

There is no federal statute of limitations covering Sec. 1983 claims; the law of the state in which the alleged action arose controls. Miller v. Smith, 625 F.2d 43 (5th Cir.1980), rev'g 615 F.2d 1037 (5th Cir.1980). Glover's action arose in Texas which requires a claimant to file a tort suit within two years after the cause of action accrues. See Tex.Civ.Prac. & Remedies Code Sec. 16.003 (Vernon 1986). A cause of action accrues on the date that a claimant either knows or should have known of his injury and its causal connection to the defendant's act. Conerly v. Morris, 575 S.W.2d 633 (Tex.Civ.App., Houston 1978), reh. denied (writ ref'd n.r.e. 1979). The limitations period is tolled if the claimant is under a disability, such as minority, mental illness, or imprisonment at the time of the offending incident. Tex.Civ.Prac. & Remedies Code Sec. 16.001(a) (Vernon 1986). Once the period of limitations begins to run, a subsequent disability does not interrupt or suspend its accrual. Tex.Civ.Prac. & Remedies Code Sec. 16.001(d) (Vernon 1986).

The question presented by this appeal is whether the two-year limitations period, tolled by virtue of Glover's arrest, began to run on October 5, 1983 when he escaped from custody. For purposes of suspending limitations, under Texas law a person is imprisoned when under arrest and in the custody of the authorities. Lasater v Waites, 67 S.W. 518 (Tex.Civ.App.1902), rev'd on other grounds, 95 Tex. 553, 68 S.W. 500 (1902). Applying this definition, the courts have found that the limitations-tolling-imprisonment-impediment does not apply to a parolee, Jimenez v. Maloney, 646 S.W.2d 673 (Tex.App. 4th Dist.1983); a person on probation, Carter v. Associated Transfer & Storage Co., 410 S.W.2d 830 (Tex.Civ.App., Waco 1966); a person released on bail, Smith v. Avance, 553 F.Supp. 434 (E.D.Tex.), affirmed, 683 F.2d 415 (5th Cir.), cert. denied, 459 U.S. 993, 103 S.Ct. 351, 74 L.Ed.2d 390 (1982); or a person no longer in confinement, Jenkins v. State, 570 S.W.2d 175 (Tex.Civ.App., Houston), reh. denied (1978).

Although we are aware of no Texas court which has addressed limitations involving a person who has escaped from lawful custody, we are persuaded that the Texas courts would not allow an escapee to assert the imprisonment...