Slack v. Carpenter ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 93-1336
Conference Calendar
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REGINALD SLACK,
Plaintiff-Appellant,
versus
DON CARPENTER ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
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(October 29, 1993)
Before POLITZ, Chief Judge, and SMITH and WIENER, Circuit Judges.
PER CURIAM:
Reginald Slack, a prisoner of the State of Texas, filed a
civil rights action alleging that Tarrant County Sheriff Don
Carpenter and Deputies Elvin Taylor and Charles Pruitt used
excessive force without provocation in violation of the Eighth
Amendment. He appeals the judgment of the district court
dismissing his second civil rights action as time-barred. Slack
argues that the limitation period should be tolled because, after
the dismissal of his first civil rights action, he sought relief
in state court, and the pendency of the state proceeding
prevented him from pursuing a federal remedy within the
limitation period.
"[W]here it is clear from the face of a complaint filed in
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forma pauperis that the claims asserted are barred by the
applicable statute of limitations, those claims are properly
dismissed pursuant to § 1915(d)." Gartrell v. Gaylor, 981 F.2d
254, 256 (5th Cir. 1993). Because there is no federal statute of
limitations for civil rights actions, the Texas general personal
injury limitations period of two years applies. Id. "Under
federal law, a cause of action accrues when the plaintiff knows
or has reason to know of the injury which is the basis of the
action." Id. at 257. The federal court gives effect to the
forum state's tolling provisions. Id. Slack's imprisonment was
not a disability that tolled the running of the limitations
period. Id. at 257.
"Texas courts have held as a general rule, where a person is
prevented from exercising his legal remedy by the pendency of
legal proceedings, the time during which he is thus prevented
should not be counted against him in determining whether
limitations have barred his right." Jackson v. Johnson, 950 F.2d
263, 265 (5th Cir. 1992) (citing Weisz v. Spindletop Oil & Gas
Co., 664 S.W.2d 423, 425 (Tex. Ct. App. 1983)) (emphasis added).
Slack was confined in the Tarrant County Jail on June 29,
1990, when the cause of action arose. According to Slack, his
first federal civil rights complaint was dismissed under Fed. R.
Civ. P. 12(b)(6) for failure to state a claim on November 15,
1990. Without addressing the question whether the principles of
res judicata and collateral estoppel precluded him from
relitigating his claims, we find nothing that prevented Slack
from filing his second federal complaint within the limitation
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period. "Generally, as between state and federal courts, the
rule is that the pendency of an action in the state court is no
bar to proceedings concerning the same matter in the Federal
court having jurisdiction. . . ." Colorado River Water Cons.
Dist. v. United States, 424 U.S. 800, 817, 96 S. Ct. 1236, 47
L. Ed. 2d 483 (1976) (internal quotation and citation omitted).
Moreover, Slack had time to file his claim after the state court
claim was decided. The state court claim was dismissed in May
1992, and the limitation period expired on June 29, 1992.
Slack misrelies on Moore v. El Paso County, Tex., 660 F.2d
586 (5th Cir. 1981), cert. denied, 459 U.S. 822 (1982), in which
the district court dismissed the federal action on the basis of
abstention to permit the plaintiff to litigate his state law
claims. 660 F.2d at 588. Unlike Moore, Slack was not required
to litigate his claims in state court but chose that forum.
Further, he was not prevented from filing his second federal
complaint within the limitation period.
Even if Texas does not provide a tolling provision, "federal
courts possess the power to use equitable principles to fashion
their own tolling provision in exceptional situations. . . ."
Rodriguez v. Holmes, 963 F.2d 799, 805 (5th Cir. 1992). However,
"Supreme Court cases have held that, when state statutes of
limitation are borrowed, state tolling principles are to be the
``primary guide' of the federal court." F.D.I.C. v. Dawson, ___
F.3d ___ (5th Cir. Oct. 21, 1993) (No. 92-2460), slip p. 459,
1993 WL 391424. "The federal court may disregard the state
tolling rule only if it is inconsistent with federal policy."
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Id.
We decline to fashion a tolling provision in this case.
Slack chose to pursue his state court claims and failed to refile
his federal claim within the limitation period. See Johnson v.
Railway Express Agency, Inc., 421 U.S. 454, 465-67, 95 S. Ct.
1716, 44 L. Ed. 2d 295 (1975). Slack's claims accrued more than
two years prior to filing the present action on August 18, 1992,
and are time-barred.
AFFIRMED.