Haarmann v. Wells

Filing 9

MEMORANDUM AND ORDER granting 2 MOTION/APPLICATION to Proceed In Forma Pauperis, Plaintiffs Complaint is DISMISSED with prejudice as legally frivolous. All other motions, if any, are DENIED. This dismissal counts as a strike under 28 U.S.C. § ; 1915(g).The Clerk is directed to provide a copy of this Memorandum and Order to the parties. The Clerk will also provide a copy by regular mail, facsimile transmission, or e-mail to the District Clerk for the Eastern District of Texas, Tyler Division, 211 West Ferguson, Tyler, Texas 75702, Manager of the Three Strikes List.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ALBERT F. HAARMANN,
TDCJ #01427509,

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Plaintiff,
VS.
LAURA WELLS,

February 28, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-3502

Defendant.
MEMORANDUM AND ORDER
Plaintiff, Albert F. Haarmann (#01427509), has filed a complaint under 42 U.S.C. § 1983
(“Complaint”), alleging that the court reporter who transcribed his court proceedings over ten
years ago violated his civil rights by failing to produce the complete transcript of the
proceedings.

(Docket Entry No. 1).

Plaintiff is a prisoner in the custody of the Texas

Department of Criminal Justice (“TDCJ”). After considering the pleadings and the attachments
thereto, the court concludes that this case must be dismissed for the reasons explained below.
I.

Background
On January 19, 2006, Plaintiff was arraigned by the Honorable Robert H. Trapp in the

411th District Court of San Jacinto County, Texas, for aggravated sexual assault and sexual
assault.1

Plaintiff alleges that a portion of the arraignment hearing was omitted from his

transcript which would show that the trial judge was biased against him.
Plaintiff reports that he discovered that his trial transcript was missing important text
evidence when he researched his case to file his state writ of habeas corpus.2 He asserts that on

1

Docket Entry No. 1 (“Complaint”) at 5.

2

Id.

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August 17, 2008, he asked the court reporter to send an amended transcript to the intermediate
state appellate court, but that the reporter, Defendant Laura Wells, wrote back to him stating that
the transcript “was complete and correct as transcribed.”3 Plaintiff alleges that this omission by
the court reporter has caused him continuing harm because he has not had the evidence he needs
to show that the trial judge was biased.
II.

Prison Litigation Reform Act
Plaintiff’s Complaint is subject to screening under the Prison Litigation Reform Act

(PLRA), which requires a district court to scrutinize claims in a civil action brought in forma
pauperis by a prisoner and dismiss the complaint, in whole or in part, if it “is frivolous,
malicious, or fails to state a claim upon which relief may be granted;” or “seeks monetary relief
from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). A reviewing court
may dismiss a complaint for these reasons “at any time” “on its own motion or on the motion of
a party” where the plaintiff proceeds in forma pauperis. 42 U.S.C. § 1997e(c); 28 U.S.C.
§1915(e)(2)(B) (mandating dismissal where the complaint is “frivolous or malicious,” “fails to
state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who
is immune from such relief”).
Pleadings filed by pro se litigants must be construed under a less stringent standard of
review. See Haines v. Kerner, 404 U.S. 519 (1972). Under this standard, a court liberally
construes a document filed pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v.
Gamble, 429 U.S. 97, 106 (1976). “Nevertheless, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A
3

Id.; see also id. at 26-27 (Plaintiff’s correspondence with Defendant).

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complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
III.

Discussion
Civil rights claims brought under 42 U.S.C. § 1983 are governed by the two-year statute

of limitations provided by Texas law. See Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th
Cir. 2001); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a); see also Wallace v. Kato, 549 U.S.
384, 388 (2007) (“[T]he accrual date of a § 1983 cause of action is a question of federal law that
is not resolved by reference to state law.”). This means that the plaintiff had two years from the
time that his claims accrued to file a civil rights complaint concerning his allegations. See
Gonzalez v. Wyatt, 157 F.3d 1016, 1020 (5th Cir. 1998) (noting that a cause of action accrues, so
that the two-year statute of limitations begins to run, when the plaintiff knows or has reason to
know of the injury which is the basis of the action).
Plaintiff’s claim, if any, arose no later than August 17, 2008, when he reports that he
discovered the omission in the transcript and wrote to the court reporter to correct the alleged
omission. The complaint in this case is dated and signed on November 15, 2016,4 which is well
outside the limitations period. Claims brought that are plainly barred by the applicable statute of
limitations are subject to dismissal as legally frivolous. See Gartell v. Gaylor, 981 F.2d 254, 256
(5th Cir. 1993).
Plaintiff contends that the alleged omission in his transcript has caused him continuing
harm, but it is clear from the face of the pleadings that the alleged wrongful conduct was a
4

Complaint at 5.

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completed event in 2008 from which he allegedly suffers continued injury. The Fifth Circuit has
held that under these circumstances, the continuing tort doctrine does not apply to toll the statute
of limitations. See Washington v. Tex. Dep’t of Criminal Justice, 653 F. App’x 370, 371-72 (5th
Cir. Jun. 30, 2016) (not selected for publication) (holding that the continuing tort doctrine did not
apply to toll the limitations period where the wrongful conduct was from one past event which
caused continuing injury). Because Plaintiff clearly waited more than two years from the time
his claims accrued to file suit, his complaint is untimely and will be dismissed as legally
frivolous. See Gartell, 981 F.2d at 256.
IV.

Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
1.

Plaintiff’s motion to proceed in forma pauperis (Docket Entry No. 2) is
GRANTED, and Plaintiff is assessed an initial partial filing fee of $14.00.
Thereafter, the plaintiff shall pay the remainder of the full balance of the filing fee
in periodic installments as required by 28 U.S.C. § 1915(b). The agency having
custody of the plaintiff shall collect this amount from the plaintiff’s inmate trust
fund account or institutional equivalent and forward it to the Clerk of Court.

2.

Plaintiff’s Complaint (Docket Entry No. 1) is DISMISSED with prejudice as
legally frivolous.

3.

All other motions, if any, are DENIED.

4.

This dismissal counts as a strike under 28 U.S.C. § 1915(g).

The Clerk is directed to provide a copy of this Memorandum and Order to the
parties. The Clerk will also provide a copy by regular mail, facsimile transmission, or email to the District Clerk for the Eastern District of Texas, Tyler Division, 211 West
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Ferguson, Tyler, Texas, 75702, Attention: Manager of the Three-Strikes List.
SIGNED at Houston, Texas, this 28th day of February, 2017.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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