United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE
plaintiff, Darwin Fisher (TDCJ #616375), has filed a Prisoner
Civil Rights Complaint under 42 U.S.C. § 1983
("Complaint")(Docket Entry No. 1), concerning the
conditions of his confinement in the Texas Department of
Criminal Justice Correctional Institutions Division
("TDCJ"). Because the plaintiff is incarcerated,
the court is required to scrutinize the claims and dismiss
the Complaint, in whole or in part, if it determines that the
Complaint "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). After considering
all of the pleadings, the court concludes that this case must
be dismissed for the reasons explained below.
is currently incarcerated at the Darrington
Unit.When Fisher filed the Complaint in this
case he was confined at the Connally Unit. The incident that
Fisher complains of occurred at the Jester IV Unit, where the
defendant, Gary B. Smith, is employed by TDCJ as a
alleges Officer Smith was escorting "Pill Tech J.
Adagun" as she was distributing medication at his cell
on January 9, 2015. Fisher objected that some of his
medication was "not present" and asked to speak to
the "charge nurse." When he did so, Adagun stepped
away from Fisher's cell. While she was gone, Fisher
contends that Smith used excessive force by spraying him
through the food tray slot of his cell with a full can of
chemical agent. Officer Smith reportedly deployed the
chemical spray because Fisher was "snorting" or
abusing medication in his cell.
claims that this is untrue,  and that Smith sprayed him
without any cause. Fisher did not file a grievance about
the incident because he was told by "unit grievance
staff [that] the issue was not
"grieveable." He seeks $5, 000.00 in damages and
costs of court for the violation of his civil
contends that Officer Smith violated his civil rights by
spraying him with a chemical agent on January 9,
2015. 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. Citv
of Houston, 237 F.3d 567, 576 (5th Cir. 2001); Tex. Civ.
Prac. & Rem. Code Ann. § 16.003(a). This means that
Fisher had two years from the time that his claims accrued to
file a civil rights action concerning these allegations.
See Gonzalez v. Wvatt, 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).
claim against Officer Smith accrued no later than January 9,
2015, when Fisher was sprayed with a chemical agent at the
Jester IV Unit. Fisher did not execute his Complaint until
February 15, 2017. Because Fisher waited more than two
years to file suit from the time his claims accrued his
Complaint against Officer Smith is untimely and subject to
dismissal as frivolous. See Gartell v. Gavlor. 981
F.2d 254, 256 (5th Cir. 1993).
Conclusion and Order
on the foregoing, the court ORDERS that the Complaint (Docket
Entry No. 1) is DISMISSED with prejudice as frivolous.
Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the plaintiff. The Clerk will also
provide a copy 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 (512) 936-2159;
and (2) the Manager of the Three-Strikes List for the
Southern District of Texas.