United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE, UNITED STATES DISTRICT JUDGE
plaintiff, Keith Whiteing, also known as Kevin Whiting (TDCJ
#601292), is an inmate presently in custody of the Texas
Department of Criminal Justice - Correctional Institutions
Division ("TDCJ"). He has filed a Prisoner's
Civil Rights Complaint under 42 U.S.C. § 1983
("Complaint") (Docket Entry No. 1) in connection
with his arrest by officers employed by the Metropolitan
Transit Authority in Houston. 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. §
l9l5A(b). After considering all of the pleadings the court
concludes that this case must be dismissed for the reasons
plaintiff is presently serving a prison sentence that he
received as the result of two felony convictions from Harris
County for possession of cocaine and harassment of a public
servant.Both offenses occurred on April 1,
2014. Public records show that indictments were
returned against the plaintiff on May 29, 2014, and that he
was convicted of the charges pursuant to a guilty plea
entered on March 24, 2015.
plaintiff now sues the Houston Metropolitan Transit Authority
("Metro") and Metro Police Chief Vera Bumpers,
alleging that two unnamed Metro police officers used
excessive force against him during his arrest on April 1,
2014, and filed "false" charges against
Invoking 42 U.S.C. § 1983, plaintiff seeks compensatory
damages for his mental anguish and false
plaintiff's Complaint, which is based on incidents that
occurred in 2014, was signed on December 6,
2017. The limitations period for a claim brought
pursuant to 42 U.S.C. § 1983 is determined by the
general statute of limitations governing personal injury in
the forum state. See Price v. City of San Antonio,
Texas, 431 F.3d 890, 892 (5th Cir. 2005) (per curiam).
Civil rights claims under § 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). Plaintiff therefore had two years from the time
that his claims accrued to file a civil rights complaint
concerning his allegations. See Gonzales v. Wyatt,
157 F.3d 1016, 1020 (5th Cir. 1998) .
a cause of action under § 1983 accrues when the
plaintiff "knows or has reason to know of the injury
which is the basis of the action." Id. at 1020.
To the extent that the plaintiff contends that excessive
force was used during his arrest, he knew or would have known
of his injury, if any, when that arrest occurred on April 1,
2014. Accordingly, the plaintiff's excessive-force claim
is barred by the two-year statute of limitations.
§ 1983 claim seeking damages for a false arrest, where
the arrest is followed by criminal proceedings, accrues
"at the time the claimant becomes detained pursuant to
legal process." Wallace v. Kato, 127 S.Ct.
1091, 1100 (2007). Legal process in the form of grand jury
indictments were instituted against the plaintiff on May 29,
2014. The plaintiff's Complaint, which is dated December
6, 2017, is well outside the statute of limitations period.
Because the plaintiff waited more than two years to file suit
from the time his claims accrued, his Complaint is untimely
and subject to dismissal as legally frivolous. See
Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993).
Conclusion and Order
on the foregoing, the court ORDERS as
1. The Prisoner Civil Rights Complaint filed by Keith
Whiteing, also known as Kevin Whiting (TDCJ #601292), (Docket
Entry No. 1) is DISMISSED with prejudice as
2. The dismissal will count as a strike for purposes of 28
U.S.C. § 1915(g).
Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the plaintiff. The Clerk will also
provide a copy of this Order by regular mail or electronic
mail to: (1) the TDCJ - Office of the General Counsel, P.O.
Box 13084, Austin, Texas 78711, Fax Number ...