Washington v. Texas Department of Criminal Justice

Case: 15-20369 Document: 00513574003 Page: 1 Date Filed: 06/30/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-20369
Fifth Circuit
FILED
June 30, 2016
ROBERT L. WASHINGTON, Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-1351
Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
Robert L. Washington, Texas prisoner # 684919, appeals the dismissal
of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C. § 1915(e)(2)
because it was barred by the statute of limitations. Washington alleged that
he was forced to participate in a sex offender treatment program when he was
released on parole in 2002 after serving a 25-year sentence on a conviction for
credit card abuse, despite the fact that his earlier 1969 rape charge was
dismissed. Washington has moved for the appointment of counsel on appeal.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 15-20369
Pursuant to Fifth Circuit Rule 42.2, “[i]f upon the hearing of any
interlocutory motion . . . it appears to the court that the appeal is frivolous and
entirely without merit, the appeal will be dismissed.” 5TH CIR. R. 42.2; see also
Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997) (noting that in context
of a motion for IFP, if the appeal is frivolous, this court may dismiss appeal
sua sponte under 5TH CIR. R. 42.2). For the reasons discussed below, we
dismiss the appeal and deny the motion for the appointment of counsel.
Washington argues that the statute of limitations did not begin to run
until after the last day the violation of his civil rights was committed, which
he asserts was on November 18, 2013, when he was finally removed from the
sex offender caseload. He contends that his civil rights action, filed on April 6,
2015, was thus filed within two years. Washington’s argument is essentially
that the continuing tort doctrine should apply.
If it is obvious from the face of the complaint filed in forma pauperis that
the case is barred by the statute of limitations, the district court can dismiss
under § 1915. Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). The statute of
limitations applicable in this case is the two year limitations period used for
Texas personal injury claims. See Stanley v. Foster, 464 F.3d 565, 568 (5th Cir.
2006). 1 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
1 The four-year federal residual limitation period does not apply because Washington
does not rely on a post-1990 enactment or amendment for his case. Jones v. R.R. Donnelley
& Sons Co., 541 U.S. 369, 382 (2004). In any event, the case would also be barred under the
four-year statute.
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No. 15-20369
of Houston, 237 F.3d 567, 576 (5th Cir. 2001) (internal quotation marks and
citation omitted). The plaintiff does not need to know that a legal cause of
action exists, but only needs to know the facts that would support a claim. Id.
Here, Washington was aware that he was being required to take the class in
2002, some 13 years before he filed this lawsuit.
Washington appears to urge reliance on the continuing tort doctrine,
which has been applied by Texas courts of appeals an exception to the statute
of limitations in Texas. See Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430,
443 (Tex. App.—Fort Worth 1997, pet. denied) (collecting cases). Under the
continuing tort doctrine, if the wrongful conduct is repeated over a period of
time, “each act creates a separate cause of action, and the cause does not
accrue, for purposes of limitations, until the misconduct ends.” Rogers v.
Ardella Veigel Inter Vivos Trust No. 2, 162 S.W.3d 281, 290 (Tex. App.--
Amarillo 2005, pet. denied).
According to Washington, he was erroneously required to participate in
the sex offender classes in July 2002 when he was released on parole. He
alleged that his continuation on the sex offender caseload caused him
continuing harm. These are allegations of continuing injury from an action
occurring in 2002, not wrongful continuing conduct. See Arquette v. Hancock,
656 S.W.2d 627, 629 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.). He did
not allege that TDCJ took any action after 2002. Accordingly, even assuming
arguendo the continuing tort doctrine has applicability in a case like this one,
it does not save Washington’s civil action. See Rogers, 162 S.W.3d at 290. The
district court did not err in dismissing this action.
There is no automatic right to the appointment of counsel in a § 1983
case. Jackson v. Dallas Police Dep’t., 811 F.2d 260, 261 (5th Cir. 1986).
Counsel should not be appointed in the absence of “exceptional circumstances”
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which are dependent on the type and complexity of the case and the abilities
of the individual pursuing that case. Id. This is not a complex matter, and as
discussed above, Washington’s appeal is subject to dismissal. Accordingly,
Washington’s motion for appointment of counsel is denied.
Washington’s appeal is without arguable merit and is therefore frivolous.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). His appeal is dismissed
as frivolous. See 5TH CIR. R. 42.2. The district court’s dismissal of
Washington’s § 1983 complaint under § 1915(e)(2) as lacking an arguable basis
in law counts as a strike for purposes of § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996). The dismissal of this appeal as frivolous
also counts as a strike. See id. We caution Washington that if he accumulates
three strikes, he will not be able to proceed IFP 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).
APPEAL DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL
DENIED; SANCTION WARNING ISSUED.
4