David Hernandez v. Susan Thomson ( 2010 )

Case: 10-50497 Document: 00511319355 Page: 1 Date Filed: 12/13/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 13, 2010
No. 10-50497
Summary Calendar Lyle W. Cayce
Clerk
DAVID LIGHTFOOT HERNANDEZ,
Plaintiff-Appellant
v.
SUSAN THOMSON, CPRS Regional Director, Individually and in her Official
Capacity; TERESA GOLD, CPRS Program Director, Region 7, Individually and
in her Official Capacity; ANNA CLARK MARTINEZ, CPRS Supervisor,
Individually and in her Official Capacity; FELIPE A. MARTINEZ, Attorney at
Law, Individually and in his Official Capacity; RALPH T. STROTHER,
Honorable Judge, 19th District Court, Individually and in his Official Capacity;
JANE A. HAGAR, CPRS Supervisor, Individually and in her Official Capacity;
JESSE GUARDIOLA, CPRS Supervisor, Individually and in his Official
Capacity; ALICIA GRAHAM, CPRS Program Director, Brownwood Staff,
Individually and in her Official Capacity; JIM SUTTON, CPRS Program
Director, Individually and in his Official Capacity; MICHELLE WELLS, CPRS
Investigation Supervisor, Brownwood Office, Individually and in her Official
Capacity; SHARON OWENS, CPRS Investigator (Specialist), Brownwood Office,
Individually in her Official Capacity; LINDA MCCARVER, Parole Supervisor,
Region I, Individually and in her Official Capacity; DOW FOGLEMAN, Parole
Officer, Individually and in his Official Capacity; BRAD LIVINGSTON,
Executive Director, Texas Department of Criminal Justice, Individually and in
his Official Capacity; BRIAN COLLIER, Deputy Executive Director, Texas
Department of Criminal Justice, Individually and in his Official Capacity; MS.
RHEESE, Supervisor, Temple Parole Office, Individually in her Official
Capacity; LINDA SHULTZ, Supervisor, Temple Parole Office, Individually and
in her Official Capacity; JERRY MASSIE, Supervising Parole Officer,
Individually and in his Official Capacity; NORMAN SHOCKLEY, Supervising
Parole Officer, Individually and in his Official Capacity; RON LLOYD,
Supervising Parole Officer, Individually and in his Official Capacity; GWEN
COX, Supervising Parole Officer, Individually and in his Official Capacity;
Case: 10-50497 Document: 00511319355 Page: 2 Date Filed: 12/13/2010
No. 10-50497
VERNON JUDY, Supervising Parole Officer, Individually and in his Official
Capacity,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:10-CV-50
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
David Lightfoot Hernandez, Texas prisoner # 458230, appeals the
dismissal of his 42 U.S.C. §§ 1983 and 1985(3) complaint as frivolous because it
was barred by the applicable statute of limitations. In his complaint, Hernandez
alleged that the defendants conspired to make a false accusation that he
sexually assaulted his stepdaughter while he was on parole in 2002. He
maintained that the false allegation, even though it was later disproved, resulted
in the implementation of Special Condition O of his parole which prohibited him
from having any contact with his stepdaughter. Hernandez asserted that after
his parole was revoked for unrelated reasons, he learned in June 2007 that
Special Condition O was still in his file.
Hernandez argues that the continuing tort doctrine makes his complaint
timely. He maintains that the continued application of Special Condition O to
him constitutes a continuing tort because it continues to violate his
constitutional right to family integrity. He asserts that his learning that Special
Condition O was still in his file in June 2007 did not trigger the running of the
statute of limitations because he has no method by which he can challenge
Special Condition O while incarcerated. He maintains that his allegation of
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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continuing intentional infliction of emotional distress overcomes the statute of
limitations.
The statute of limitations applicable in the instant case is borrowed from
that applicable to Texas personal injury claims, which is two years. See Stanley
v. Foster, 464 F.3d 565, 568 (5th Cir. 2006). However, “the accrual date of a
§ 1983 cause of action is a question of federal law that is not resolved by
reference to state law.” Wallace v. Kato, 549 U.S. 384, 388 (2007). Under federal
law, a claim generally accrues “the moment the plaintiff becomes aware that he
has suffered an injury or has sufficient information to know that he has been
injured” and that there is a connection between his injury and the defendant’s
actions. Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001)
(internal quotation marks and citation omitted). State law tolling provisions to
a state statute of limitations that is adopted by federal law apply to federal civil
actions. Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). The continuing
tort doctrine is an exception to the statute of limitations in Texas. See Mitchell
Energy Corp. v. Bartlett, 958 S.W.2d 430, 443 (Tex. App. 1997).
According to Hernandez, the false accusation of sexual assault was made
in 2002, and Special Condition O was added in 2002. Hernandez did not allege
that any of the defendants took any actions after 2002. All that Hernandez
alleged was that Special Condition O continued to apply, causing him continuing
emotional distress and other harm. These are allegations of continuing injury
from actions occurring in 2002, not a continuing tort occurring to the present
day. See Arquette v. Hancock, 656 S.W.2d 627, 629 (Tex. Ct. App. 1983). While
Texas courts have sometimes held that the intentional infliction of emotional
distress constitutes a continuing tort, that is only when the actions of the
defendants, such as harassment, continue to occur, not when emotional distress
caused by previous actions continues to be felt. See Zurita v. Lombana, __
S.W.3d __, 2010 WL 3782170 at *5 (Tex. Ct. App. Sept. 30, 2010). As Hernandez
alleged merely continuing injury, not continuing tortious actions, the continuing
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tort doctrine does not apply. See Rogers v. Ardella Veigel Inter Vivos Trust No.
2, 162 S.W.3d 281, 290 (Tex. Ct. App. 2005).
Hernandez’s allegations concern actions taken by the defendants in 2002.
Hernandez did not allege that he only recently learned of the actions taken by
the defendants; the last thing he alleges that he learned was that Special
Condition O was still in his file in June 2007. He filed the present civil action,
at the earliest, on December 27, 2009. Accordingly, Hernandez’s civil action was
barred by the applicable two-year statute of limitations, and the district court
did not abuse its discretion by dismissing the civil action. See Helton v.
Clements, 832 F.2d 332, 334-36 (5th Cir. 1982).
The district court’s dismissal of Hernandez’s complaint counts as a strike
for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
388 (5th Cir. 1996). We caution Hernandez that once he accumulates three
strikes, he may not proceed in forma pauperis in any civil action or appeal filed
while he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.
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