David Hernandez v. Susan Thomson, et al

Filing

UNPUBLISHED OPINION FILED. [10-50497 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 01/03/2011 [10-50497]

David Hernandez v. Case: Thomson, et al Susan 10-50497 Document: 00511319355

Page: 1 Date Filed: 12/13/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50497 S u m m a r y Calendar December 13, 2010 Lyle W. Cayce Clerk

D A V I D LIGHTFOOT HERNANDEZ, P la in t if f -A p p e lla n t v. S U S A N THOMSON, CPRS Regional Director, Individually and in her Official C a p a c it y ; TERESA GOLD, CPRS Program Director, Region 7, Individually and in her Official Capacity; ANNA CLARK MARTINEZ, CPRS Supervisor, I n d iv id u a lly and in her Official Capacity; FELIPE A. MARTINEZ, Attorney at L a w , Individually and in his Official Capacity; RALPH T. STROTHER, H o n o r a b le Judge, 19th District Court, Individually and in his Official Capacity; J A N E A. HAGAR, CPRS Supervisor, Individually and in her Official Capacity; J E S S E GUARDIOLA, CPRS Supervisor, Individually and in his Official C a p a c it y ; ALICIA GRAHAM, CPRS Program Director, Brownwood Staff, I n d iv id u a lly and in her Official Capacity; JIM SUTTON, CPRS Program D ir e c t o r , Individually and in his Official Capacity; MICHELLE WELLS, CPRS I n v e s t ig a t io n Supervisor, Brownwood Office, Individually and in her Official C a p a city ; SHARON OWENS, CPRS Investigator (Specialist), Brownwood Office, I n d iv id u a lly in her Official Capacity; LINDA MCCARVER, Parole Supervisor, R e g io n I, Individually and in her Official Capacity; DOW FOGLEMAN, Parole O ffic e r , Individually and in his Official Capacity; BRAD LIVINGSTON, E x e c u tiv e Director, Texas Department of Criminal Justice, Individually and in h is Official Capacity; BRIAN COLLIER, Deputy Executive Director, Texas D e p a r t m e n t of Criminal Justice, Individually and in his Official Capacity; MS. R H E E S E , Supervisor, Temple Parole Office, Individually in her Official C a p a c it y ; LINDA SHULTZ, Supervisor, Temple Parole Office, Individually and in her Official Capacity; JERRY MASSIE, Supervising Parole Officer, I n d iv id u a lly and in his Official Capacity; NORMAN SHOCKLEY, Supervising P a r o le Officer, Individually and in his Official Capacity; RON LLOYD, S u p e r v is in g Parole Officer, Individually and in his Official Capacity; GWEN C O X , Supervising Parole Officer, Individually and in his Official Capacity;

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Case: 10-50497 Document: 00511319355 Page: 2 Date Filed: 12/13/2010 No. 10-50497 V E R N O N JUDY, Supervising Parole Officer, Individually and in his Official C a p a c ity , D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 1:10-CV-50

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* D a v id Lightfoot Hernandez, Texas prisoner # 458230, appeals the d is m is s a l of his 42 U.S.C. §§ 1983 and 1985(3) complaint as frivolous because it w a s barred by the applicable statute of limitations. In his complaint, Hernandez a lle g e d that the defendants conspired to make a false accusation that he s e x u a lly assaulted his stepdaughter while he was on parole in 2002. He

m a in t a in e d that the false allegation, even though it was later disproved, resulted in the implementation of Special Condition O of his parole which prohibited him fr o m having any contact with his stepdaughter. Hernandez asserted that after h is parole was revoked for unrelated reasons, he learned in June 2007 that S p e c ia l Condition O was still in his file. H e r n a n d e z argues that the continuing tort doctrine makes his complaint t im e ly . He maintains that the continued application of Special Condition O to h im constitutes a continuing tort because it continues to violate his c o n s t it u t io n a l right to family integrity. He asserts that his learning that Special C o n d it io n O was still in his file in June 2007 did not trigger the running of the s t a t u t e of limitations because he has no method by which he can challenge S p e c ia l 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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Case: 10-50497 Document: 00511319355 Page: 3 Date Filed: 12/13/2010 No. 10-50497 c o n t in u in g intentional infliction of emotional distress overcomes the statute of lim ita tio n s. T h e statute of limitations applicable in the instant case is borrowed from t h a t 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 r e fe r e n c e to state law." Wallace v. Kato, 549 U.S. 384, 388 (2007). Under federal la w , a claim generally accrues "the moment the plaintiff becomes aware that he h a s suffered an injury or has sufficient information to know that he has been in ju r e d " and that there is a connection between his injury and the defendant's a c tio n s. Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001)

(in t e r n a l 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 a c t io n s . Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). The continuing t o r t doctrine is an exception to the statute of limitations in Texas. See Mitchell E n e r g y Corp. v. Bartlett, 958 S.W.2d 430, 443 (Tex. App. 1997). A c c o r d in g to Hernandez, the false accusation of sexual assault was made in 2002, and Special Condition O was added in 2002. Hernandez did not allege t h a t any of the defendants took any actions after 2002. All that Hernandez a lle g e d was that Special Condition O continued to apply, causing him continuing e m o t io n a l distress and other harm. These are allegations of continuing injury fr o m actions occurring in 2002, not a continuing tort occurring to the present d a y . See Arquette v. Hancock, 656 S.W.2d 627, 629 (Tex. Ct. App. 1983). While T e x a s courts have sometimes held that the intentional infliction of emotional d is t r e s s constitutes a continuing tort, that is only when the actions of the d e fe n d a n t s , such as harassment, continue to occur, not when emotional distress c a u s e d by previous actions continues to be felt. See Zurita v. Lombana, __ S .W .3 d __, 2010 WL 3782170 at *5 (Tex. Ct. App. Sept. 30, 2010). As Hernandez a lle g e d merely continuing injury, not continuing tortious actions, the continuing 3

Case: 10-50497 Document: 00511319355 Page: 4 Date Filed: 12/13/2010 No. 10-50497 t o r t doctrine does not apply. See Rogers v. Ardella Veigel Inter Vivos Trust No. 2 , 162 S.W.3d 281, 290 (Tex. Ct. App. 2005). H e r n a n d e z 's allegations concern actions taken by the defendants in 2002. Hernandez did not allege that he only recently learned of the actions taken by t h e defendants; the last thing he alleges that he learned was that Special C o n d it io n O was still in his file in June 2007. He filed the present civil action, a t the earliest, on December 27, 2009. Accordingly, Hernandez's civil action was b a r r e d by the applicable two-year statute of limitations, and the district court d id not abuse its discretion by dismissing the civil action. C le m e n ts , 832 F.2d 332, 334-36 (5th Cir. 1982). T h e district court's dismissal of Hernandez's complaint counts as a strike fo r purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 3 8 8 (5th Cir. 1996). We caution Hernandez that once he accumulates three s t r ik e s , he may not proceed in forma pauperis in any civil action or appeal filed w h ile he is incarcerated or detained in any facility unless he is under imminent d a n g e r of serious physical injury. See § 1915(g). A F F I R M E D ; SANCTION WARNING ISSUED. See Helton v.

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