Burkett et al v. Bales

Filing 36

MEMORANDUM AND ORDER ON DISMISSAL.(Signed by Judge Kenneth M. Hoyt) Parties notified.(ccarnew, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
MICHAEL WILLIAM BURKETT, JR, et al,
Plaintiffs,
VS.
RALPH BALES,
Defendant.

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CIVIL ACTION NO. G-10-153

MEMORANDUM AND ORDER OF DISMISSAL
Plaintiff Michael William Burkett, Jr., a state inmate proceeding pro se and in forma
pauperis, filed this civil rights complaint pursuant to 42 U.S.C. §1983 against Defendant Ralph
Bales. The plaintiff has filed a response (Doc. No. 35) to the Court’s order for more definite
statement (Doc. No. 34) regarding allegations in his complaint. Having considered all pleadings,
the Court will dismiss the complaint because it is time-barred and fails to state a claim.
When a plaintiff seeks to proceed in forma pauperis pursuant to 28 U.S.C. §1915(a), the
court may dismiss the pauper's case if satisfied that it is frivolous, malicious, or fails to state a
claim for which relief can be granted. 28 U.S.C. §1915(e)(2). A case may be dismissed for being
frivolous if the claim has no realistic chance of ultimate success or has no arguable basis in law
and fact. See Pugh v. Parish of St. Tammany, 875 F.2d 436, 438 (5th Cir. 1989); Booker v.
Koonce, 2 F.3d 114 (5th Cir. 1993). The determination whether an action is frivolous or
malicious may be made prior to service of process; therefore, such claims are dismissible sua
sponte prior to service under 28 U.S.C. § 1915 (e)(2).

Ali v. Higgs, 892 F.2d 438 (5th Cir.

1990).
A plaintiff proceeding pursuant to § 1983 must show that he has been deprived of a right
secured by the Constitution and laws of the United States, and that the deprivation was caused by

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a person acting under color of state law. See e.g., Thorne v. Jones, 765 F.2d 1270 (5th Cir.
1985), cert. denied, 475 U.S. 1016 (1986). In this case, the plaintiff asserts that Defendant Ralph
Bales, PREA ombudsman, is required to oversee administrative investigations of sexual abuse
allegations. The plaintiff alleges that Bales failed in his official duties as the PREA ombudsman
because PREA investigations at the prisons are meaningless and evidence is not collected as
required by law. The plaintiff further alleges that Bales failed to ensure that “the PREA policy
shielding plaintiff from possible sexual or physical assault was implemented, posted, and applied
at the William Clements unit” where plaintiff was incarcerated, and that his failure to do so “had
a personal effect on the sexual and physical assault” suffered by the plaintiff in December 2007.
A court should dismiss a suit when “it is clear from the face of a complaint filed in forma
pauperis that the claims asserted are barred by the applicable statute of limitations.” Gartrell v.
Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). Because there is no federal statute of limitations for
§ 1983 actions, federal courts borrow the forum state's general limitations period, Owens v.
Okure, 488 U.S. 235 (1989), which, for personal injury in Texas, is two years. See Tex. Civ.
Prac. & Rem. Code Ann. § 16.003(a); see also Burrell v. Newsome, 883 F.2d 416, 418-19 (5th
Cir. 1989). The Court must then determine when the cause of action accrued, and in so doing,
federal courts apply federal law. Pete v. Metcalfe, 8 F.3d 214, 217 (5th Cir. 1993). The federal
standard governing § 1983 actions provides that a cause of action accrues when a person knows
or has reason to know of the injury which is the basis of the action. Id. A plaintiff need not
realize that a legal cause of action exists, but must know the facts that would support a claim.
Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir. 1995).
The plaintiff’s personal injury claims clearly arose in December 2007, when he was
allegedly assaulted. The plaintiff did not file this suit until April 19, 2010, over four months

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after the period for filing suit had expired. Even if the plaintiff were to argue that he was not
aware of the PREA or Defendant Bales’ role as ombudsman until after his personal injury, the
Fifth Circuit has rejected a similar argument, holding that even in instances where a plaintiff
does not learn of the exact reason for an injury until well after the fact, a claim for personal
injury nonetheless arises when the plaintiff first knows that he has been injured, not when he
knows the particulars of the claim. See Vaught v. Showa Denko K.K., 107 F.3d 1137, 1141-42
(5th Cir. 1997). Based on the facts of this case, Burkett knew that he had been injured in
December 2007 but did not file this lawsuit until April 2010. As such, his claims are timebarred.
Moreover, even in his claims were not time-barred, the plaintiff has wholly failed to show
that the sexual or physical abuse that he allegedly suffered was not properly investigated, that the
defendant failed in his duties as the PREA ombudsman, or that the defendant was directly
responsible for prison sexual abuse investigations at the Clements unit. Failure to indicate an
individual defendant's personal involvement in an alleged unconstitutional action is grounds for
dismissing the complaint. Coon v. Ledbetter, 780 F.2d 1158, 1161 (5th Cir. 1986).
Based on the foregoing, the Court ORDERS that the instant complaint is DISMISSED
with prejudice as time-barred and for failure to state a claim.
The Clerk shall provide a copy of this order by regular mail, facsimile transmission,
or e-mail to: (1) the TDCJ - Office of the General Counsel, P.O. Box 13084, Austin, Texas,
78711, Fax Number [phone]; (2) the Inmate Trust Fund, P.O. Box 629, Huntsville,

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Texas 77342-0629, fax: [phone]; and (3) the District Clerk for the Eastern District of
Texas, Tyler Division, 211 West Ferguson, Tyler, Texas, 75702, Attention: Manager of the
Three-Strikes List.
SIGNED at Houston, Texas this 5th day of January, 2012.

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Kenneth M. Hoyt
United States District Judge

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