United States District Court, S.D. Texas, Houston Division
MEMORANDUM ON DISMISSAL
H. BENNETT UNITED STATES DISTRICT JUDGE.
John Ramirez, a Texas Department of Criminal Justice inmate,
sued in September 2017, alleging civil rights violations
resulting from a denial of due process. Ramirez, proceeding
pro se and in forma pauperis, sues four unnamed officials in
the TDCJ Classification and Records Office. Ramirez asserts
that on April 6, 1989, he pleaded guilty to the third-degree
felony offense of theft of over $750.00 and less than $20,
000.00 in the 243rd Judicial District Court of El Paso
County, Texas. (Cause Number 54210). Ramirez was sentenced to
a prison term of six years. Ramirez complains that during the
intake process at the TDCJ on October 19, 1989, a prison
official incorrectly reported that Ramirez had been convicted
of the first-degree offense of burglary of a habitation under
Cause Number 54210. Ramirez explains that he was actually
convicted of theft of over $750.00 and less than $20, 000.00,
not burglary of a habitation.
states that on April 20, 1990, the trial court entered
Judgment Nunc Pro Tunc which increased the county jail flat
time credited from that of 48 days, to that of 116 days. The
trial court also removed the inaccurate reference to the
offense being a burglary of a habitation and instructed the
Defendants to conform their electronic/paper records to the
judgment of conviction and sentence nunc pro tunc. Ramirez
asserts that the Defendants failed to comply with the trial
court's instructions, and on December 4, 1991, the trial
court once again entered an Order Nunc Pro Tunc instructing
the Defendants to conform their electronic/paper records to
reflect that the offense of conviction under El Paso County
Cause Number 54210 is theft over $750.00 but less than $20,
000 with a sentence of six years imprisonment imposed and 116
days of County Jail flat time credited. The trial court
reissued the order on January 25, 2016, and the Defendants
complied on May 9, 2016. Ramirez states that he discharged
the wrongful sentence on March 18, 1995.
seeks a declaratory judgment that the Defendants violated his
civil rights. He further seeks compensatory damages of $80,
000 for each of the six years of his prison term; $68, 000
against each Defendant jointly and severally; and punitive
damages of $10, 000 against each Defendant.
federal court has the authority to dismiss an action in which
the plaintiff is proceeding in forma pauperis before
service if the court determines that the action is frivolous
or malicious. 28 U.S.C. § 1915(e)(2)(B)(i). A complaint
is frivolous if it lacks an arguable basis in law or fact.
See Denton v. Hernandez, 504 U.S. 25, 31 (1992);
Richardson v. Spurlock, 260 F.3d 495, 498 (5th Cir.
2001) (citing Siglar v. Hightower, 112 F.3d 191, 193
(5th Cir. 1997)). "A complaint lacks an arguable basis
in law if it is based on an indisputably meritless legal
theory, such as if the complaint alleges the violation of a
legal interest which clearly does not exist." Davis
v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quoting
McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.
of an action is appropriate when "it is clear from the
face of a complaint filed in forma pauperis
that the claims asserted are barred by the applicable statute
of limitations." Gartrell, 981 F.2d at 256. In
section 1983 cases, the federal courts apply the forum
state's general personal injury statute of limitations.
Burge v. Parish of St. Tammany, 996 F.2d 786, 788
(5th Cir. l993)(citing Hardin v. Straub, 490 U.S.
536, 538-39 (1989)). Although the governing period of
limitations is determined by reference to state law, the
accrual of a cause of action under section 1983 is determined
by reference to federal law. Jackson v. Johnson, 950
F.2d 263, 265 (5th Cir. 1992). Under the federal standard,
"a cause of action accrues when the plaintiff knows or
has reason to know of the injury which is the basis of the
action." Harris v. Hegmann, 198 F.3d 153,
156-57 (5th Cir. 1999)(quoting Burrell v. Newsome,
883 F.2d 416, 418 (5th Cir. 1989)). The plaintiff must be in
possession of "critical facts" which indicate that
he has been hurt and that the defendants were responsible for
the injury. Stewart v. Parish of Jefferson, 951 F.2d
681, 684 (5th Cir.), cert, denied, 506 U.S. 820
(1992). A plaintiff need not realize that a legal cause of
action exists, but must know the facts that would support a
claim. Piotrowski v. City of Houston, 51 F.3d 512,
516 (5th Cir. 1995).
Texas period of limitations for personal injury actions is
two years. See Tex. Civ. Prac. & Rem. Code Ann.
§ 16.003(a) (Vernon 2018). Ramirez's claim arose
from the events of October 19, 1989, when he discovered the
error as to his conviction. Ramirez did not file this suit
until September 7, 2017, almost twenty-six years after
limitations had run.
statute of limitations bars Ramirez from asserting his civil
rights claims against the named Defendants. Ramirez's
claims are dismissed under 28 U.S.C. § 1915(e). AH
v. Higgs, 892 F.2d 438 (5th Cir. 1990).
Ramirez's claims are barred by the doctrine announced in
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In
Heck, the Court explained that a complaint brought
pursuant to 42 U.S.C. § 1983 must be dismissed when the
civil rights action, if successful, would necessarily imply
the invalidity of a plaintiffs conviction or sentence, unless
the plaintiff demonstrates that the conviction or sentence
has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to
make such a determination, or called into question by a
federal court's issuance of a writ of habeas corpus under
28 U.S.C. § 2254.
noted, Ramirez states that he was convicted of theft over
$750.00 but less than $20, 000 in Cause Number 54210, but the
TDCJ incorrectly treated him as having been convicted of
burglary of a habitation. Ramirez states that he discharged
this wrongful sentence in 1995.
liberally, the crux of Ramirez's complaint is that he was
improperly convicted of burglary of a habitation on April 6,
1989. He submits an order dated January 25, 2016 from the
243rd Judicial District Court of El Paso County, Texas.
(Docket Entry No. 2, pp. 20-21). Ramirez alleges that the
district court vacated his conviction for burglary of a
habitation in Cause Number 54210.
submissions show that on "October 13, 2015, Movant filed
a Motion for an Order of Notification to the Texas Department
of Criminal Justice Correctional Institutions Division and
Pardons and Paroles Division of Trial Court Entering Judgment
of Conviction ...