Kingham v. Pham et al

Filing 63

MEMORANDUM AND ORDER granting 19 MOTION to Dismiss. It is FURTHER ORDERED that the complaint 1 is DISMISSED WITH PREJUDICE; andIt is FURTHER ORDERED that all other pending motions are DISMISSED AS MOOT.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GLENN KINGHAM,
Plaintiff,
VS.
T PHAM, et al,
Defendants.

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July 26, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:16-CV-619

MEMORANDUM AND ORDER
Plaintiff Glenn Kingham filed a complaint under 42 U.S.C. § 1983 alleging violations of
his Fourth, Fifth, Eighth, and Fourteenth Amendment rights. On August 2, 2016, this Court
dismissed several named defendants from this case. (Doc. # 15). On September 20, 2016, the
remaining defendants, police officers Tony Phan and Sylvia Sosa, moved to dismiss the
complaint for failure to state a claim on which relief can be granted. (Doc. # 19) Kingham
responded on October 11, and November 28, 2016. For the reasons stated below, the motion to
dismiss is granted.
I.

Background
Kingham alleges that the two remaining defendants falsely accused him of speeding,

arrested him without probable cause, damaged his property, and committed perjury. He alleges
that the false arrest and property damage occurred on December 18, 2012, and the alleged
perjury occurred on November 5 and 6, 2013. Plaintiff’s More Definite Statement (Doc. # 12) at
3-5; Motion to Dismiss, Exhibits A and B. He filed his complaint on February 25, 2016.

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II.

Analysis
A.

Standard of Review

In reviewing a motion to dismiss under rule 12(b)(6), the complaint must be liberally
construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true.
Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986). The standard of review under
rule 12(b)(6) has been summarized as follows: "The question therefore is whether in the light
most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states
any valid claim for relief." 5 Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357, at 601 (1969).
B.

Statute of Limitations

Defendants argue, inter alia, that Kingham’s claims are barred by the statute of
limitations.
Because there is no federal statute of limitations for civil rights
actions brought pursuant to 42 U.S.C. § 1983, a federal court
borrows the forum state's general personal injury limitations
period. Owens v. Okure, 488 U.S. 235, 249–50, 109 S.Ct. 573,
581–82, 102 L.Ed.2d 594 (1989); Jackson v. Johnson, 950 F.2d
263, 265 (5th Cir.1992). In Texas, the applicable limitations period
is two years.
Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993).
Kingham alleges that the false arrest and property damage occurred on December 18,
2012, and the alleged perjury occurred on November 5 and 6, 2013. Therefore, the limitations
period on Kingham’s false arrest and property damage claims expired on December 18, 2014,
and the limitations period on any claims arising from the alleged perjury expired on November 6,
2015. Kingham’s complaint is dated February 25, 2016, and was received by the Clerk’s Office
on March 9, 2016. See Complaint (Doc. # 1) at 1, 5. It is untimely.

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Kingham makes no argument for tolling the statute of limitations, and no basis for tolling
is apparent from the record. Therefore, Kingham’s complaint must be dismissed as untimely.
III.

Order
It is ORDERED that the motion to dismiss by defendants Phan and Sosa (Doc. # 19) is

GRANTED;
It is FURTHER ORDERED THAT the complaint (Doc. # 1) is DISMISSED WITH
PREJUDICE; and
It is FURTHER ORDERED that all other pending motions are DISMISSED AS MOOT.
SIGNED on this 26th day of July, 2017.
___________________________________
Kenneth M. Hoyt
United States District Judge

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