DocketNumber: Civ. A. No. A-94-CA-52 JN
Citation Numbers: 865 F. Supp. 382
Judges: Nowlin
Filed Date: 10/20/1994
Status: Precedential
Modified Date: 11/26/2022
ORDER AND JUDGMENT
Before the Court are Motions to Dismiss, filed by all ten Defendants, Plaintiffs Response to Defendants’ Motions to Dismiss, filed on July 22,1994, Defendant Boardman’s Reply to Plaintiffs Response, filed on July 26, 1994 and Defendant Everitt’s Reply to Plaintiffs Response, filed on August 2, 1994. This cause was referred to the United States Magistrate for findings and recommendations pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, as amended, effective January 1, 1994. The Magistrate filed his Report and Recommendation on August 19,1994. Plaintiff filed his objections to the Magistrate’s Report and Recommendation on August 31, 1994. Defendant Alvin Shaw filed his Response to Plaintiffs Objections on September 22, 1994.
In light of the Plaintiffs objections, the Court has undertaken a de novo review of the entire file in this cause and is of the opinion that the Recommendation filed by the Magistrate in this cause should be modified and adopted by the Court as set out below.
I. BACKGROUND
Plaintiff brings this action, pursuant to 42 U.S.C. § 1983, alleging that he was subject to an unlawful arrest on or about January 3, 1990, that self-incriminating evidence was extracted from him by physical and mental assault, and that the incriminating evidence was used to obtain his conviction on January 29, 1992. Plaintiff further alleges that be
Each of the ten Defendants has moved for dismissal on the grounds that this action is barred by the applicable statute of limitations.
II. ANALYSIS
It is undisputed that the applicable statute of limitations period for this case is two years. E.g., Gartrell v. Gaylor, 981 F.2d 254, 256-57 (5th Cir.1993); Tex.Civ.Prac. & Rem.Code § 16.003(a). Furthermore, Plaintiff concedes that the limitations period began to run no later than January 29, 1992. See Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir.1980) (stating that the limitations period begins to run when the Plaintiff knows or has reason to know of the injury which is the basis of the action). Therefore,. since more than two years have elapsed between the accrual of Plaintiffs claims and the filing of the instant action, this cause of action is time-barred unless there is an applicable tolling provision.
After reviewing the record and the applicable law, the Court finds that there is a tolling provision that is applicable to this case.
In the case at bar, several of the Plaintiffs § 1983 claims directly or indirectly challenge the constitutionality of his state court conviction and, under Johnson and Serio, Plaintiff is prevented from bringing these claims until he has exhausted his habeas remedies.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the United States Magistrate’s Report and Recommendation filed in this cause is MODIFIED and ADOPTED by the Court.
ACCORDINGLY IT IS ORDERED, ADJUDGED AND DECREED that the above numbered and styled cause of action is hereby DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the above numbered and styled cause of action is CLOSED and any pending motions are hereby DISMISSED AS MOOT.
. In light of its ruling on the statute of limitations and exhaustion issues, the Court declines to comment on the merits of the other grounds for dismissal advanced by the Defendants.
. Plaintiff argues that this Court should exercise its equitable power to toll limitations because this case presents an exceptional situation in which the state statute of limitations eradicates Plaintiff’s rights or frustrates policies created by federal law. See Rodriguez v. Holmes, 963 F.2d 799 (5th Cir.1992). The Magistrate Judge found that this case is not an exceptional situation under Rodriguez and this Court agrees with that finding.
. Plaintiff acknowledges that he has not exhausted his state habeas remedies.
. It appears from the record that Plaintiff began pursuing the required exhaustion before the expi
. Because the issue has not been litigated or argued, the Court declines to specify at this time which of the Plaintiff’s claims require exhaustion and therefore qualify for the tolling provision.