Herndon v. Discount Tires et al

Filing 8

ORDER OF DISMISSAL ; this lawsuit is DISMISSED WITH PREJUDICE as frivolous, barred by limitations, and/or for failure to state a viable claim under section 1983. Any and all pending motions are DENIED AS MOOT; TERMINATING 2 MOTION for Leave to Proceed in forma pauperis with certificate of trust account.(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

United States District Court
Southern District of Texas

ENTERED
June 27, 2016

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
J ACOB R EASHAW H ERNDON,
Plaintiff,
v.
D ISCOUNT T IRES, et al.,
Defendants.

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David J. Bradley, Clerk

C IVIL A CTION N O. H-16-1786

O RDER OF D ISMISSAL
Plaintiff, a state inmate currently in custody at the Dallas County Jail, files this section
1983 lawsuit against Discount Tires, the Houston Police Department, a Harris County
assistant district attorney, and the Harris County Sheriff’s Department. He claims that he was
wrongfully charged with theft of services in Harris County, Texas in 2013, and that the
charges were subsequently dropped. He seeks monetary damages for lost wages and income
and defense costs in an amount “from $2,000 to 2 million.” He claims that the charges were
brought by Discount Tires.
Public court records for the Harris County District Clerk’s Office show that on August
14, 2013, plaintiff was indicted by a grand jury for felony theft of services by check in cause
number 1399222 in the 183rd District Court of Harris County, Texas. An individual was
named as the complainant, and no reference is made to Discount Tires. The case was
dismissed on January 9, 2014, at the request of the assistant district attorney. Plaintiff claims
that at some point during his detention prior to dismissal of the charges, a unknown police

officer struck him in the ribs and called him a “slave of the state.” However, no damages are
requested for this alleged incident.
The limitations period for section1983 claims is governed by Texas’s two-year statute
of limitations for personal injury claims. Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007). Although the Court looks to Texas law to determine the applicable limitations period
for a section 1983 claim, federal law governs accrual of the claim. Gartrell v. Gaylor, 981
F.2d 254, 257 (5th Cir. 1993). The Supreme Court has determined that limitations for a
section 1983 claim seeking damages for a false arrest or wrongful detention “in violation of
the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run
at the time the claimant becomes detained pursuant to legal process.” Wallace v. Kato, 549
U.S. 384, 127 S. Ct. 1091, 1100 (2007).
Here, the Harris County criminal records show that plaintiff was provided a probable
cause determination before a magistrate following his arrest in cause number 1399222 on
November 2, 2013, at which time the magistrate found probable cause for plaintiff’s
continued detention by the Harris County Sheriff’s Office. Limitations for a false arrest or
wrongful detention claim commenced at that point and expired two years later, on November
2, 2015. Because plaintiff did not file this lawsuit until June 2016, any claim for false arrest
or wrongful detention is now barred by limitations. Likewise, any claim for assault or
excessive force is barred by the two-year statute of limitations. Even assuming one or more
of plaintiff’s claims did not accrue until the criminal charges were dismissed on January 9,
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2014, plaintiff did not file the instant lawsuit within two years thereafter, and the claims
would remain barred by limitations.
To any extent plaintiff has lodged a claim for malicious prosecution, the claim must
be dismissed for failure to state a claim upon which relief can be granted under section 1983.
See Cuadra v. Houston Independent School District, 626 F.3d 808, 812–13 (5th Cir. 2010)
(holding that there is no independent claim for malicious prosecution under section 1983);
Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (same).
For these reasons, this lawsuit is DISMISSED WITH PREJUDICE as frivolous,
barred by limitations, and/or for failure to state a viable claim under section 1983. Any and
all pending motions are DENIED AS MOOT. This dismissal constitutes a “strike” for
purposes of section 1915(g).
Signed at Houston, Texas on June 27, 2016.

Gray H. Miller
United States District Judge

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