Winton v. Burton

• Decision Date: 15 February 1984
• Docket Number: Civ. A. No. S-79-68-CA.
• Citation: 582 F. Supp. 1044
• Parties: Terry D. WINTON, Plaintiff, v. Jerry BURTON, Royce Abbott, and John Thompson, Defendants.
• Court: U.S. District Court — Eastern District of Texas

582 F. Supp. 1044

Terry D. WINTON, Plaintiff, v. Jerry BURTON, Royce Abbott, and John Thompson, Defendants.

Civ. A. No. S-79-68-CA.

United States District Court, E.D. Texas, Sherman Division.

February 15, 1984.

COPYRIGHT MATERIAL OMITTED

Terry D. Winton, pro se.

Bill Bass, Canton, Tex., court-appointed for plaintiff.

Tom O'Connell, Crim. Dist. Atty., McKinney, Tex., Ernest E. Figari, Jr., P.C., A. Erin Dwyer, Johnson & Swanson, Dallas, Tex., for defendants.

FINAL ORDER OF DISMISSAL

JOE J. FISHER, District Judge.

CAME ON for consideration the above referenced civil action, this Court having heretofore ordered that this matter be referred to the United States Magistrate for proper consideration pursuant to applicable laws and orders of the Court. Having received the report of the U.S. Magistrate pursuant to its order, and no objections thereto having been filed, this Court is of the opinion the findings and conclusions of the Magistrate are correct, and adopts same as the findings and conclusions of the Court. It is therefore

ORDERED, ADJUDGED and DECREED that this cause be, and the same is hereby, DISMISSED from the docket of this Court

REPORT OF THE U.S. MAGISTRATE

Nov. 16, 1983.

HOUSTON ABEL, United States Magistrate.

Plaintiff, Terry D. Winton, proceeding in forma pauperis with Court appointed attorney, claims violation of his constitutional rights under 42 U.S.C. § 1983. Plaintiff filed this action while an inmate of the Texas Department of Corrections and has recently been released.

The Defendants are the former sheriff of Collin County, Texas, Jerry Burton, and two of his deputies, Royce Abbott and John Thompson.

NATURE OF THE CASE

On June 28, 1979, Plaintiff Terry D. Winton ("Winton") brought the present action against Defendants Jerry Burton ("Burton"), Royce Abbott ("Abbott"), and John Thompson ("Thompson") seeking damages for alleged violations of his civil rights while confined in the Collin County Jail. On August 9, 1979, Burton, Abbott, and Thompson (collectively, the "Defendants") filed their original answer denying all of the material allegations of Winton's complaint (the "Complaint"). In addition, on October 25, 1979, the Defendants timely moved to dismiss the present action as barred by the applicable statute of limitations.

On April 23, 1981, this Magistrate appointed Bill Bass, Esq. of the Van Zandt County Bar to represent Plaintiff. A pretrial hearing was held before this Magistrate on October 10, 1981 at which time Plaintiff requested additional time for discovery and moved to amend his complaint.

On April 21, 1982, the Court granted Winton leave to file an amended Complaint in the present action. On April 23, 1982, Winton filed such amended Complaint, misnomered as his supplemental Complaint¹ (the "Supplemental Complaint"), in which he asserted for the first time additional claims against the Defendants arising out of transactions or occurrences separate from those which gave rise to the claims asserted by him in the Complaint.

On April 29, 1982, an evidentiary hearing was held in Tyler, Texas, on Defendants' Motion to Dismiss at which Winton appeared with counsel, Bill Bass and Defendants appeared with counsel, Collin County Assistant District Attorney. Plaintiff testified and called as adverse witnesses, the three Defendants and James Epolito, a former Collin County Deputy Sheriff. The hearing was continued on Plaintiff's Motion to allow additional witnesses to testify. On May 11, 1982, the hearing was resumed with testimony of Plaintiff's witness Morrison and Coppola, T.D.C. inmates, and former inmates of the Jail. The Defendants, on June 27, 1983, renewed their Motion to Dismiss, supported with extensive briefing.

Winton's claims arise from four separate incidents allegedly occurring at the Collin County Jail (the "Jail") during the period of his incarceration in the Jail.

FINDINGS AND CONCLUSIONS

1. This Court has jurisdiction pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983.

2. The following chronology of events is helpful in the understanding of the legal issues involved:

(A) November 16, 1974 — Plaintiff confined in the Collin County Jail

(B) February 1, 1975 — Plaintiff's Claim # 1 occurred — the attempted jailbreak. (Burton, Abbott as Defendants)

(C) June, September, 1976 — Plaintiff's claims # 2 and # 3 occurred. (Defendant Thompson)

(D) May 17, 1977 — Plaintiff's escape from the Collin County Jail.

(E) December 1, 1977 — Plaintiff's reincarceration in the Collin County Jail.

(F) January, 1978 — Plaintiff's Claim # 4 occurred. (Abbott as Defendant)

(G) June 28, 1979 — Plaintiff filed Complaint on Claim # 1.

(H) April 28, 1981 — Plaintiff's attorney Bill Bass appointed.

(I) April 22, 1982 — Plaintiff filed Supplemental Complaint raising for the first time Claims # 2 and # 3 (Thompson) and Claim # 4 (Abbott)

(J) April 29, 1982 and May 11, 1982 — Evidentiary hearing on Defendants' Motion to Dismiss.

3. This report makes no findings as to the merits of Plaintiff's cause of action for the reason that the Complaint must be dismissed as barred by Article 5526, Tex.Rev. Civ.Stat. (Vernon 1958), which provides for a two-year limitation period.

4. The following is a summation of the facts which support this conclusion in the preceding paragraph.

(A) The Escape Attempt. On November 16, 1974, Winton was arrested and placed in the Collin County Jail (the "Jail") on a charge of burglary. Winton Transcript 5:19-22.² Shortly thereafter, Winton and several of his fellow inmates at the Jail attempted to escape.³ After another prisoner "sounded the alarm", Burton, Abbott, and Thompson, along with other sheriff's deputies, entered the cell block to quell the attempted jailbreak and apprehended Winton and the other escapees. According to Winton, the Defendants Burton and Abbott violated his civil rights while attempting to capture him in the aftermath of the escape attempt. (Claim # 1).

On July 9, 1975, Winton was convicted of burglary and sentenced to twenty years in the state penitentiary in Huntsville. (Winton Transcript 2:20-22). Accordingly, Winton was transferred from the Jail to the Texas Department of Corrections in order to serve the term of his imprisonment.

4. (B) Alleged Subsequent Violations and the Escape. Approximately one year later, Winton was transferred back to the Jail in order to appear at a hearing on his writ of habeas corpus. During the period of this second incarceration at the Jail, Winton alleges that Thompson violated his civil rights. In this connection, Winton asserts that on two occasions, first in June and later in September, 1976, Thompson struck him with a flashlight during a "shakedown" of the Jail which was conducted by sheriff's deputies in order to locate weapons smuggled in by the prisoners. (Claims # 2 and # 3).

On May 14, 1977, while Winton was still incarcerated in the Jail on this second occasion, he learned that his burglary conviction had been overturned by the Texas Court of Criminal Appeals. (Winton Transcript 4:10-17). Although Winton's attorney informed him that a new bond would be set for Winton's release, Winton elected instead to plan another escape, which he successfully executed on May 17, 1977. Id. For the next six months, until he was relocated and captured in California, Winton was not imprisoned in Texas, and he was free from any restraint associated with imprisonment.

In December, 1977, following his capture in California, Winton was extradited to Texas and returned to the Jail pending his trial on charges of burglary and escape. According to Winton, his civil rights were again violated, during the period of this third incarceration in the Jail, when he was allegedly assaulted in January, 1978, by another inmate who was acting at the direction of Abbott. (Claim # 4).

4. (C) The Complaint. On June 28, 1979, more than two years after he successfully escaped from the Jail, Winton filed the Complaint and claimed damages for violations of his civil rights which allegedly occurred on the night of his attempted escape more than four years earlier. Winton has introduced no evidence showing that he was denied access to the courts and thereby prevented from bringing the present action at any time during the period of his confinement.

(D) The Supplemental Complaint. On April 23, 1982, which was almost five years after the date he escaped from the Jail, Winton filed the Supplemental Complaint. In the Supplemental Complaint, Winton alleges that his civil rights were violated (1) by Thompson, as a result of the incidents allegedly occurring in June and September, 1976, almost six years earlier, and (2) by Abbott, as a result of the alleged incident in January, 1978 — more than four years prior to the filing of the Supplemental Complaint. Again, Winton failed to allege or demonstrate any inability to obtain access to the courts within two years of the date these causes of action accrued.

DISCUSSION

5. The claims asserted by Winton in the Complaint are barred by the applicable limitations period.

(A) Winton's Claims are Subject to a Two-Year Statute of Limitations. Since § 1983 does not itself contain a limitations period, the federal courts will borrow the state statute of limitations which applies to the most similar state cause of action. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); Major v. Arizona State Prison, 642 F.2d 311, 312 (9th Cir. 1981); Kissinger v. Foti, 544 F.2d 1257, 1258 (5th Cir.1977). Indeed, the Civil Rights Act specifically provides for this borrowing procedure. See 42 U.S.C. § 1988.

Winton's allegations in the present action essentially sound in tort for injury done to his person, and therefore, under Texas law the appropriate limitations statute is Tex.Rev.Civ.Stat. art. 5526 (Vernon 1958) which provides for a two year limitations period. See Humble v. Foreman, 563 F.2d 780, 781 (5th Cir.1977) (Louisiana law); Smith v. Avance, 553...