Smith v. Mursura et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 11 Report and Recommendations. FURTHER ORDERED that Plaintiff Willie Smith's Complaint [#1] is DISMISSED WITH PREJUDICE. Signed by Judge Sam Sparks. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

33

WILLIE SMITH #1946942,
Plaintiff,
-vs-

Case No. A-15-CA-1017-SS

MICHAEL MURSURA, VICTORIA LYNN
ALLEN, and THE CITY OF SMITHVILLE,
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Plaintiff Willie Smith's Complaint [#1], Plaintiff's More Definite Statement [#9], the
Report and Recommendation of United States Magistrate Judge Mark Lane [#11], and

f's

Objections [#14].
All matters in this case were referred to United States Magistrate Judge Mark Lane for report

and recommendation pursuant to 28 U.S.C.

§

63 6(b) and Rule 1(f) ofAppendix C ofthe Local Court

Rules of the United States District Court for the Western District of Texas, Local Rules for the

Assignment of Duties to United States Magistrate Judges. Plaintiff is entitled to de novo review of

the portions of the Magistrate Judge's report to which he filed specific objections. 28 U.S.C.
§ 636(b)(l).

All other review is for plain error. Douglass v.

United Servs. Auto. Ass

'n,

79 F.3d 1415,

1428-29(5th Cir. 1996) (en bane). Nevertheless, this Court has reviewed the entire file de novo, and
agrees with the Magistrate Judge's recommendation.

Background
Plaintiff Willie Smith claims he was falsely arrested and charged with a crime he did not
commit. He is currently incarcerated in the Hodge Unit of the Texas Department of Criminal Justice
Correctional Institutions Division. Plaintiff brings this § 1983 suit against Police Officer Michael

Mursura and Victoria Allen, the Smithville City Manager's wife with whom Plaintiff allegedly had
an affair. According to Plaintiff, Mursura falsely represented to the magistrate judge that Plaintiff

was selling drugs, and Allen framed Plaintiff by recording two encounters which purportedly showed

Plaintiff selling drugs. According to Plaintiff, Allen used her husband's position as the Smithville
City Manager to "frame" Plaintiff after her husband found out about the affair. Plaintiff seeks

$1,000,000 in damages as a result of Mursura and Allen's alleged harassment, slander, false

imprisonment, entrapment, and perjury.

Analysis
I.

Legal Standard
An informapauperis proceeding maybe dismissed sua sponte under 28 U.S.C. § 191 5(e)(2)

if "the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28

U.S.C.

§

1915(e)(2). An action maybe dismissed as frivolous "if it lacks an arguable basis in law

or fact." Gonzalez v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998) (quoting Siglar v. Hightower, 112
F.3d 191, 193 (5th Cir. 1997)). A dismissal for frivolousness may occur at anytime, before or after

service of process and before or after the defendant's answer. Green v. McKaskle, 788 F.2d 1116,
1119 (5th Cir. 1986).

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Prose complaints are liberally construed in favor ofthe plaintiff. Haines v. Kerner, 404 U.s.
519, 520-21 (1972). The allegations in the complaint, "particularly

apro se complaint, must be

accepted as true, along with any reasonable inferences that may be drawn therefrom." Watts

v.

Graves, 720 F.2d 1416, 1419 (5th Cir. 1983). The petitioner' spro se status, however, does not offer

him "an impenetrable shield, for one acting pro se has no license to harass others, clog the judicial
machinery with meritless litigation, and abuse already overloaded court dockets." Farguson

v.

MbankHous. NA., 808 F.2d 358, 359 (5th Cir. 1986).

II.

Application

A.

Statute of Limitations
Plaintiff's § 1983 claims are frivolous, because they are barred by the statute of limitations.

See, e.g., Wyatt, 157 F.3d at 1019-21 (explaining clearly time-barred IFP claims are properly

dismissed as frivolous). Because there is no statute of limitations for civil rights actions brought

under

§

1983, the United States Supreme Court has instructed federal courts to apply the forum

state's personal injury limitations period. Owens v. Okure, 488 U.S. 235, 249-50 (1989). In Texas,
the statute of limitations is two years.

TEX.

Civ. PRAC. REM. CODE

§

16.003(a).

Although Texas law governs the applicable limitations period, federal law determines when

the cause of action accrues. Gartrell v. Gaylor, 981 F.2d 254,257(5th Cir. 1993). Under federal law,
a cause of action accrues when the plaintiff knew or should have known of the injury which forms

the basis of his action. Piotrowski
§

v.

City

of Houston, 51 F.3d 512, 514, n.5 (5th Cir. 1995). In a

1983 claim for damages arising from a false arrest in violation

of the Fourth Amendment, where

the arrest is followed by criminal proceedings, the statute of limitations "begins to run at the time

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the claimant becomes detained pursuant to legal process." Wallace

v.

Kato, 549 U.s. 384, 397

(2007).

Plaintiff was booked on January 12, 2013, according to Bastrop County Clerk's records. See
R. & R. [#11-1] Ex.

1

(Appendix). He was released that same day after posting a $20,000 surety

bond for the three criminal cases charging him with delivery of a controlled substance. Id. The
statute of limitations in this case began to run on January 12, 2013, when Plaintiff was detained
pursuant to legal process following his bond hearing. Plaintiff did not file his complaint until July
16, 2015, well after the two-year statute

of limitations expired. See Compi. [#1].

In his objections, Plaintiff argues the statute of limitations should be tolled, because he did

not gain access to the appropriate pro se papers until he was later transferred to the Texas
Department of Criminal Justice. Obj. [#14] at 3. "Because the Texas statute of limitations is

borrowed in § 1983 cases, Texas' equitable tolling principles also control." Rotella v. Pederson, 144
F.3d 892, 897 (5th Cir. 1998). "Texas courts sparingly apply equitable tolling and look, inter alia,
to whether a plaintiff diligently pursued his rights; litigants may not use the doctrine to avoid the

consequences of their own negligence." Myers

v.

Nash, 464 F. App'x 348, 349 (5th Cir. 2012).

In this case, Plaintiff has not shown grounds for equitable tolling. The Fifth Circuit has

previously determined that an inadequate law library is insufficient to establish the extraordinary
circumstances which warrant equitable tolling. See Schaefer v. Stack, 641 F.2d 227, 228 (5th Cir.
1981) (applying Florida law); Madis v. Edwards, 347 F. App'x 106, 108 (5th Cir. 1009). Because

Plaintiff has failed to explain how an inadequate library prevented him from contacting a lawyer or
requesting the papers from a prison official, equitable tolling is not warranted. Therefore, Plaintiffs
federal claims are dismissed as time-barred.

B.

Supplemental Jurisdiction
In addition to his

§

1983 claims, Plaintiff asserts state law claims. A district court may

decline to exercise supplemental jurisdiction over a state claim where the claim raises novel or
complex issues of state law, where the state claim predominates over the federal claims, where all
federal claims have been dismissed, or where there are other compelling reasons to decline

jurisdiction. See 28 U.S.C. § 1367(c). Because the court dismisses Plaintiff's federal claims as timebarred, the Court declines to exercise supplemental jurisdiction over the remaining state law claims.

Conclusion
Accordingly,
IT IS ORDERED that Plaintiff Willie Smith's Objections [#14] are OVERRULED;
IT IS FURTHER ORDERED that the Report and Recommendation of the United

States Magistrate Judge Mark Lane [#11] is ACCEPTED;
IT IS FURTHER ORDERED that Plaintiff Willie Smith's Complaint [#1] is

DISMISSED WITH PREJUDICE;
IT IS FiNALLY ORDERED that the Clerk of Court shall e-mail a copy of this order

to the Pro Se Clerk for the United States District Court for the Eastern District of Texas.

SIGNED this the

day of February 2016.

SAM'Ir DISTRICT JUDGE
UNITED STATES
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