Gonzales v. Wyatt

• Decision Date: 23 October 1998
• Docket Number: No. 97-41074,97-41074
• Citation: 157 F.3d 1016
• Parties: Raul GONZALES, Jr., Plaintiff-Appellant, v. Morris WYATT, Sergeant, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1016

157 F.3d 1016

41 Fed.R.Serv.3d 1613

Raul GONZALES, Jr., Plaintiff-Appellant, v. Morris WYATT, Sergeant, Defendant-Appellee.

No. 97-41074.

United States Court of Appeals Fifth Circuit.

Oct. 23, 1998.

Raul Gonzales, Jr., Livingston, TX, pro se.

Nathan Ray Horne, Austin, TX, for Defendant-Appellee.

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

Before KING, GARWOOD and HIGGINBOTHAM, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Raul Gonzales, Jr. (Gonzales), a prisoner in the Texas Department of Criminal Justice, appeals the limitations-based dismissal of his 42 U.S.C. § 1983 in forma pauperis (IFP) suit against defendant-appellee Morris Wyatt (Wyatt), alleging that in an altercation on January 24, 1994, Wyatt, a corrections officer at the Darrington Unit where Gonzales was then confined, used excessive force against Gonzales.

Facts and Proceedings Below

On January 19, 1996, a typewritten but wholly unsigned complaint in Gonzales' name containing these allegations was received in the mail by the district clerk. It was apparently accompanied by a letter dated January 8, 1996, from one Willie Milton, a nonlawyer prisoner who was then confined at the Darrington Unit. The record does not contain a copy of the letter, but it is referred to in affidavits subsequently filed by Milton and Gonzales. The complaint was not accompanied by either a filing fee or an application to proceed IFP. It appears that some time well prior to January 1996, Gonzales was transferred from the Darrington Unit, in Brazoria County, Texas, to the French Robertson Unit of the Texas Department of Corrections in Abilene, Texas, where he remained at all times thereafter.

On January 23, 1996, the magistrate judge issued and sent to Gonzales--whether at Darrington or French Robertson is unclear--a "notice of deficient pleading" advising Gonzales that he "must file within thirty days of the date of this notice" (January 23, 1996) an application to proceed IFP (or pay the filing fee) and "must submit a signed copy of your complaint to the Clerk" and that if he "fails to comply on time, the court may dismiss this case." Gonzales received this notice at French Robertson Unit on January 26 or 27, 1996. On February 29, 1996, nothing further having been received from Gonzales, the magistrate judge issued a report and recommendation, a copy of which was served on Gonzales, recommending that the case be dismissed for total failure to comply with the January 23, 1996, order. On March 11, 1996, Gonzales filed a signed complaint naming Wyatt as defendant (not verbatim the same as that received January 19, 1996, but making the same basic allegations) and a signed motion to proceed IFP, each dated March 5, 1996. Also the same day he filed an objection, dated March 4, 1996, to the magistrate judge's February 29 report and recommendation, in which, as supplemented by later affidavits, he asserted that on January 30 or 31--some four days after he received the magistrate judge's January 23, 1996, notice--all his legal papers were confiscated by the prison authorities and he was confined to his cell and that he continued to be so confined and without his papers until February 29, 1996, which accounted for his failure to respond sooner to the January 23 notice.

On June 28, 1996, the district court entered an order declining to adopt the magistrate judge's February 29 report and recommendation, observing that "Plaintiff now appears to be prosecuting his case." Gonzales was thereafter granted leave to proceed IFP and Wyatt was served. Wyatt subsequently filed an answer and a motion to dismiss, each raising, inter alia, the statute of limitations. The magistrate judge thereafter issued a report and recommendation recommending that Wyatt's motion to dismiss be granted because the suit was barred by limitations, as the complained-of conduct occurred January 24, 1994, and Gonzales' signed complaint was not filed until March 11, 1996, more than two years later. Examining the affidavits filed by Gonzales and Milton, the magistrate judge concluded:

"that it was not he [Gonzales], but another inmate, Mr. Willie Milton, who filed the original complaint with the Clerk.

....

... Mr. Milton submitted an unsigned complaint on Plaintiff's behalf to the Clerk, with the expectation that it would be accepted and then forwarded to Plaintiff for signature. Facilitating the litigation process in this particular manner is not the function of the Clerk's office.

....

Defendant has now moved to dismiss the instant case because Plaintiff's signed complaint, which he appears to have actually had a hand in preparing, was not submitted to the Clerk until March 11, 1996, well after the expiration of the period of limitations, which in the instant case would have expired on or around January 24, 1996, given that the allegedly actionable incident took place on January 24, 1994.

This Court is of the opinion that this action should be dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1) since it is clearly time-barred, as adjudged from the face of the signed complaint that was submitted to the Clerk by Plaintiff himself.... Thus, it appears to this Court that Plaintiff was rather dilatory in his attempt to file a civil rights complaint. The last-minute efforts by Mr. Milton could have been avoided had Plaintiff simply acted earlier in order to get his complaint on file."

Gonzales filed objections to the magistrate judge's report and recommendation. The district court considered the objections and reviewed the record de novo, and on August 13, 1997, issued an opinion and order overruling the objections and adopting the report and recommendations. The district court stated in relevant part:

"In his objections, Plaintiff offers a number of reasons for not complying with the notice of deficient pleading that was issued on January 23, 1996, which Plaintiff avers he received on January 27, 1996. Plaintiff explains the difficulties inherent in having an inmate from another prison location prepare his civil rights complaint, which he avers was necessary given his lack of legal knowledge. However, it must be noted that the individual who prepared the complaint is also a layperson and that the forms provided for these matters to the prison law libraries make preparation of civil rights complaints a relatively simple matter. Plaintiff then would rely on the alleged confiscation of his legal materials on or around January 31, 1996, to explain his failure to comply with the notice of deficient pleading. This Court accepts the truth of all of Plaintiff's averments in this regard, however, what Plaintiff does not explain is his delay in bringing suit in the first instance, given that the actionable event took place on January 24, 1994. As the magistrate judge remarked, the last-minute and after-the-fact problems that arose could have been avoided had Plaintiff brought suit in a more timely fashion."

On the same day, the district court entered a separate judgment dismissing the action. Gonzales timely appeals.

Discussion

An IFP complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous "if it lacks an arguable basis in law or fact." Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997). We review such dismissals for abuse of discretion. Id. "Where it is clear from the face of a complaint filed in forma pauperis that the claims asserted are barred by the applicable statute of limitations those claims are properly dismissed pursuant to § 1915." Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir.1993).

In this section 1983 action, the applicable limitations period is the two-year period provided by Texas law. Ali v. Higgs, 892 F.2d 438 (5th Cir.1990); Tex. Civ. Prac. and Rem.Code § 16.003(a). The cause of action accrues, so that the statutory period begins to run, when the 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). The complaint alleges that Wyatt used excessive force on Gonzales on January 24, 1994. Gonzales does not argue that he did not on January 24, 1994, know of the injury made the basis of the suit or that, if not tolled, limitations did not begin to run January 24, 1994. He argues that limitations was tolled because of his imprisonment. However, that is a matter controlled by Texas law, and under Texas law imprisonment does not toll limitations. Ali at 439; Burrell at 418-19; Tex. Civ. Prac. and Rem.Code § 16.001. Limitations, if not tolled, generally continues to run until the suit is commenced by the filing of the plaintiff's complaint in the clerk's office. Martin v. Demma, 831 F.2d 69, 71 (5th Cir.1987); Fed.R.Civ.P. 3. It is hence clear that unless Gonzales' complaint can be said to have been filed on or before January 25, 1996, the claims asserted therein are barred by limitations.

When the plaintiff causes his complaint to be delivered to the clerk's office for filing, it is for these purposes deemed filed when received. Id. Likewise, when a pro se prisoner delivers his section 1983 complaint to the prison authorities for forwarding to the clerk of court, the complaint is, for limitations purposes, deemed filed at that time. Cooper v. Brookshire, 70 F.3d 377, 378 (5th Cir.1995).

Here, the clerk's office on January 19, 1996, received from nonlawyer Milton, a prisoner at the Darrington Unit, a wholly unsigned complaint listing Gonzales--then confined at the French Robertson Unit--as the plaintiff and Wyatt as the defendant, complaining of the latter's use of excessive force on Gonzales on January 24, 1994. Fed. R. Civ. Proc. 11(a) provides in relevant part:

"(a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall...