United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE
Juarez, who was formerly in the custody of the Texas
Department of Criminal Justice ("TDCJ"),
filed a complaint while incarcerated under 42 U.S.C. §
1983 alleging violations of his civil rights. Juarez, who
proceeds pro se and in forma pauperis, was
injured while washing the windows of a prison building. The
undersigned judge's predecessor initially dismissed this
case as time-barred (Dkt. 8). The Fifth Circuit vacated the
judgment and remanded the case on the basis that the record
was insufficiently developed for a determination by the Fifth
Circuit on the limitations issue (Dkt. 23). In this
Court's estimation, the case does appear to be
time-barred, and the Court ordered Juarez to show cause why
it should not be dismissed on that basis (Dkt. 34). The Court
has received and considered Juarez's response (Dkt. 35)
and will now DISMISS this case.
alleges that the defendant, Mr. Anderson (Juarez does not
know his first name), a correctional officer, ordered Juarez
to use a ladder to reach a prison building's second-floor
windows over Juarez's objections and without giving
Juarez the proper training. While Juarez was working,
Anderson ordered the inmate who was holding the ladder base
to retrieve additional cleaning supplies. The ladder began to
fall away from the building, and Juarez fell from the ladder
and sustained injuries. The incident took place on April 3,
2008 (Dkt. 32 at p. 7). Juarez signed his original complaint
on May 8, 2013-more than five years later (Dkt. 1 at p. 7).
Juarez claimed before the Fifth Circuit that he deposited a
complaint with prison officials for mailing on August 27,
2012 (Dkt. 23 at p. 2). This Court never received that
district court may raise the statute of limitations defense
sua sponte in an action proceeding under 28 U.S.C.
§ 1915. Gartrell v. Gaylor, 981 F.2d 254, 256
(5th Cir. 1993). The court may then dismiss the action
sua sponte after giving the parties "fair
notice and an opportunity to present their positions."
See Day v. McDonough, 547 U.S. 198, 210 (2006). The
statute of limitations for a suit brought under 42 U.S.C.
§ 1983 is determined by the general statute of
limitations governing personal injuries in the forum state.
Piotrowski v. City of Houston, 237 F.3d 567, 576
(5th Cir. 2001). Texas has a two-year statute of limitations
for personal injury claims. Tex. Civ. Prac. & Rem. Code
§ 16.003(a). Even though the length of time the
plaintiff has to file a lawsuit under Section 1983 is
determined by state law, the point at which a claim under
Section 1983 accrues is governed by federal law.
Piotrowski, 237 F.3d at 576. Under federal law, the
cause of action accrues "when the plaintiff knows or has
reason to know of the injury which is the basis of the
action." Gonzales v. Wyatt, 157 F.3d 1016, 1020
(5th Cir. 1998). There is one critical qualifier relevant to
this case: when the plaintiff realizes that he sustained harm
from the tortious act, the cause of action has accrued, even
if the plaintiff later discovers that his injuries are worse
than he originally thought. Albertson v. T.J. Stevenson
& Co., Inc., 749 F.2d 223, 229, 232-33 (5th Cir.
1984); see also Beech v. United States, 345 F.2d
872, 874 (5th Cir. 1965) (holding that a slip-and-fall claim
under the Federal Tort Claims Act was time-barred when the
plaintiff, who experienced severe pain immediately after the
fall, filed suit within one year of learning the true nature
and extent of her injury but more than two years after the
fall); McNeese v. Cook, 114 F.3d 1181, 1997 WL
256696, at *1 (5th Cir. 1997) (unpublished) (citing
Albertson and holding that a prisoner's Section
1983 claim stemming from the use of tear gas to control a
prison riot accrued on the date of the riot, when he first
suffered eye pain, and not on the date on which he learned
how serious the eye injuries were).
that Juarez did indeed deposit a complaint in the prison
mailing system on August 27, 2012, then his lawsuit was still
untimely unless his claim accrued after August 27, 2010. As
previously mentioned, Juarez fell off of the ladder on April
3, 2008; and he admits that he immediately suspected that he
was injured and sought medical treatment (Dkt. 32 at p. 7).
Even if the date of the fall is not the proper date of
accrual, the latest possible accrual date is September 14,
2009. Juarez knew that he had sustained serious injuries on
September 14, 2009, because that was the date on which he was
"medically transferred for [his] first spinal
surgery" (Dkt. 32 at p. 7). Both of those dates are long
before August 27, 2010. In his response to the Court's
show cause order, Juarez does not argue for either a later
accrual date or tolling of the limitations period; rather, he
simply states that he has "had a lot of pain &
suffering since the date of April 3, 2008 [when he] fell from
the ladder due to the negligents [sic] of Mr. Anderson"
(Dkt. 35). If anything, Juarez's response confirms that
the proper accrual date is April 3, 2008.
on the foregoing, this case is DISMISSED WITH PREJUDICE as
barred by the applicable statute of limitations. Time-barred
in forma pauperis claims are properly dismissed as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).
Gonzales, 157 F.3d at 1019-20. All pending motions
are DENIED as moot.
Clerk will provide a copy of this order to the parties. The
Clerk is also directed to provide a copy of this order to the
Manager of the Three-Strikes List for the Southern District
of Texas at ThreeStrikes@txs.uscourts.gov.
Juarez's prisoner number while
incarcerated was 01340121 (Dkt. 1 at ...