Pete v. Metcalfe

• Decision Date: 16 November 1993
• Docket Number: No. 91-1494,91-1494
• Citation: 8 F.3d 214
• Parties: Omer Gilbert PETE, Plaintiff-Appellant, v. Don METCALFE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 214

8 F.3d 214

Omer Gilbert PETE, Plaintiff-Appellant, v. Don METCALFE, et al., Defendants-Appellees.

No. 91-1494.

United States Court of Appeals, Fifth Circuit.

Nov. 16, 1993.

Omer Gilbert Pete, pro se.

Deanne C. Ayers and Harvey G. Joseph, Ayers & Ayers, Dallas, TX, for Perry.

Douglas Larson, Mesquite, TX, for Josh Taylor.

Steven Rogers and Rowry Martin, II, Dallas, TX, for Metcalfe and Fourt.

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

Before GARWOOD and DeMOSS, Circuit Judges, and DUPLANTIER ^*, District Judge.

GARWOOD, Circuit Judge:

Plaintiff-appellant Omer Gilbert Pete (Pete) appeals the dismissal of his 42 U.S.C. § 1983 civil rights action against various defendants arising out of his arrest, prosecution and incarceration for sexual assault. We affirm.

Facts and Proceedings Below

Pete alleged that sometime in early 1985, Dudley Perry (Perry), a Mesquite, Texas, police officer, confronted Pete with a charge by his daughter, Trellis, that Pete had raped her on July 3, 1982. Pete explained to Perry that he had been in a severe accident on June 27, 1982, that had physically incapacitated him for several months. Perry confronted Pete again sometime later and stated that Trellis had changed her story and now recalled that Pete had raped her in April or May of 1982. This second time proved to be outside the limitations period for criminal charges.

On May 12, 1985, Pete was arrested and charged with multiple felony offenses, including sexual assault of his younger daughter, Samantha. The day after Pete's arrest, Perry showed Pete what purported to be a signed statement by Samantha accusing Pete of sexually assaulting her. Perry boasted to Pete that he (Perry) had been after Pete for ten years and had finally gotten him. Pete noticed at the time, however, that Samantha's alleged statement was not in Samantha's handwriting, but in Trellis' handwriting, and that Samantha's signature appeared to have been pasted onto the document and photocopied.

According to Pete, Perry and Dennis Cox (Cox), an investigator for the Dallas County District Attorney's Office, had conspired with Trellis to falsely accuse Pete. Also according to Pete, it was Perry who persuaded Samantha to fabricate her charges of sexual assault against Pete by convincing her that Pete had murdered his wife (Samantha's mother), and would kill Samantha as well unless she cooperated in having Pete sent to jail. ¹

Pete retained attorneys Don Metcalfe (Metcalfe) and Paul Fourt (Fourt) to represent him. Pete was released on bail on May 14, 1985, but was re-incarcerated shortly thereafter when the court increased his bail. Pete posted bond and was again released on July 29, 1985.

Pete was convicted of the charges against him and sent to a Texas Department of Corrections (TDC) facility to serve his sentence. On his direct appeal, Pete's conviction was reversed and remanded for another trial by the Texas Fifth District Court of Appeals in Dallas on May 7, 1986. The State petitioned the Texas Court of Criminal Appeals for review; the Court of Criminal Appeals denied the petition. Pete was transferred from the TDC facility back to the Dallas County Jail on April 23, 1987, pending his retrial.

Pete then again attempted to secure his release on bail from the Dallas county jail. This release was precluded, however, by a TDC administrative "hold" that had been placed on him. According to Pete, at this point Metcalfe and Fourt did nothing to help him secure his release and because of this, and because of their poor performance in representing him, Pete fired them.

Prior to Pete's second trial, the court appointed attorney Sue Gorham (Gorham) to represent him. Gorham arranged a plea bargain for Pete whereby he would plead nolo contendere to the charges and receive a sentence of the two years he had already served in prison. Pete accepted the plea bargain.

Even after the plea bargain was accepted by the court and Pete's sentence set at time served, however, he was unable to secure his release from Dallas County Jail because of the TDC hold on him. He petitioned for a writ of habeas corpus and was finally released on November 26, 1987.

Pete also alleges that Joshua W.E. Taylor (Taylor), an attorney, had been appointed as Samantha's guardian ad litem by the Texas Juvenile Court on May 15, 1985, three days after Pete was originally arrested. On October 31, 1985, the Juvenile Court issued a permanent injunction that no contact be permitted between Pete and Samantha. An exception to the injunction permitted written correspondence between the two, but such letters were to be screened by the Juvenile Court.

Pete alleged that Taylor knew that Samantha had fabricated her charge against Pete, but withheld that information from the court. ² Pete also claimed that Taylor aided Perry in persuading Samantha to testify against Pete, and that Taylor further restricted communication between Pete and Samantha, which prevented Pete from discovering what or who had caused her to falsely accuse him.

On October 16, 1989, almost two years after his final release from prison, Pete filed this 42 U.S.C. § 1983 suit in United States district court seeking damages against Metcalfe, Fourt, Gorham, Perry, Cox, Taylor, and the TDC for their parts in his arrest, prosecution, and imprisonment. The case was referred to a magistrate who, following diverse motions by various of the defendants and responses thereto by Pete, recommended dismissal of Pete's claims because (1) Pete's claims were barred by the statute of limitations, (2) the TDC was immune from liability by virtue of the Eleventh Amendment, and (3) Metcalfe, Fourt, Gorham, or Taylor, as private attorneys, were not state actors and therefore could not be sued under section 1983. The district court adopted the magistrate's findings and dismissed the suit. Pete filed a timely notice of appeal.

Discussion

We first note that the Eleventh Amendment precludes Pete's suit against the TDC for damages. Alabama v. Pugh, 438 U.S. 781, 782-83, 98 S.Ct. 3057, 3058, 57 L.Ed.2d 1114 (1978); Clay v. Texas Women's University, 728 F.2d 714, 715 (5th Cir.1984). Pete has not challenged this ruling on appeal.

Second, Metcalfe, Fourt, and Gorham, the attorneys who represented Pete in this matter, are not state officers or employees. The Supreme Court, in Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), held that the proper test for determining whether a private party is amenable to suit under section 1983 is whether the party was "a willful participant in joint action with the State or its agents." Id. at 27, 101 S.Ct. at 186.

In his pleadings, Pete charges Metcalfe, Fourt, and Gorham with nothing more than professional malpractice. In his complaint, Pete asserts liability of these three attorneys on the basis of "inaction, negligence and malpractice [that] deprive [Pete] of liberty and property without due process of law...." Even affording Pete's pro se pleadings the liberal construction to which they are entitled, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), we cannot find any allegation of complicity between these attorneys and any of the other state actors allegedly involved in Pete's arrest and prosecution.

Applying the Sparks standard, we find that Pete did not plead sufficient facts that, if true, would render Metcalfe, Fourt, and Gorham amenable to suit under 42 U.S.C. § 1983. Pete's action with regard to these defendants was properly dismissed. ³

As to the other defendants, Perry, Cox, and Taylor, this action must be dismissed in part on statute of limitations grounds and in part on the merits.

In determining the limitations period for a section 1983 claim, we apply the applicable period provided by state law, in this case the two-year Texas personal injury limitations period. Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir.1989). In determining when Pete's cause of action accrued, however, we apply federal law. Id. The federal standard provides that a cause of action under section 1983 accrues "when the plaintiff knows or has reason to know of the injury which is the basis of the action." Id.

Pete knew he had been subject to wrongful arrest and confinement at the hands of Perry and Cox on May 12, 1985. Pete admitted below that he became aware of his claim against Taylor during his first trial, which took place later in 1985. ⁴ In any event, these facts were known to Pete more than two years before October 16, 1989, the date Pete finally filed his section 1983 action. Unless the limitations period was tolled for some reason, his claims against Perry, Cox, and Taylor would therefore be barred.

Pete claims that the limitations period should be tolled until the date of his final release from prison on November 26, 1987, because of his imprisonment. The Supreme Court has held that for section 1983 actions, the use of the state law limitations period includes application of state tolling provisions for imprisonment. Hardin v. Straub, 490 U.S. 536, 543, 109 S.Ct. 1998, 2003, 104 L.Ed.2d 582 (1989).

Prior to September 1, 1987, Texas law recognized imprisonment as a disability that would toll an otherwise applicable limitations period. Tex.Civ.Prac. & Rem.Code Ann. § 16.001 (West 1985); Burrell, supra, 883 F.2d at 418-19. However, Texas courts and this Court uniformly held that tolling due to imprisonment under the prior tolling statute ended on the date the plaintiff was first released from prison. Glover v. Johnson, 831 F.2d 99, 100-101 (5th Cir.1987). Also, subsequent re-imprisonment did not thereafter suspend the running of the limitations period. Tex.Civ.Prac. & Rem.Code Ann. § 16.001(d) (West 1985). The statute of limitations on Pete's claims against Perry and Cox started to run, therefore, not later than May 14, 1985, the date Pete was first released on bail after his arrest.

Analysis of Pete's claims against Taylor is a bit more...