United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER MAGISTRATE JUDGE.
to 28 U.S.C. § 636(b) and Special Order 3, this
case was referred to the United States magistrate judge for
pretrial management. The Court granted Plaintiff's motion
to proceed in forma pauperis but did not issue
process pending judicial screening. Upon review of the
relevant pleadings and applicable law, this case should be
summarily DISMISSED WITH
PREJUDICE as frivolous and for failure to
state a claim.
November 20, 2018, Plaintiff Roberto Martinez, a state
prisoner, filed a pro se complaint against Security
Officer David Presley and Peace Officer Kaiser. Doc. 3 at 3.
He asserted constitutional violations stemming from his
arrest on June 18, 2011, and his subsequent prosecution for
failure to register as a sex offender in 2012. Doc. 3 at 4.
On January 25, 2019, Martinez filed the operative Fourth
Amended Complaint (“Amended Complaint”),
only asserting claims against Officer Kaiser and, thus,
abandoning claims against Presley. Doc. 9 at 3-4. Martinez
alleges that Kaiser failed to investigate “all material
evidence, ” contact witnesses, and gather “all
the necessary information about the
witnesses”-including the purported 911 caller- before
arresting him on June 18, 2011. Doc. 9 at 4, 6. Further, he
avers that Kaiser “conspired to imprison and register
[him] as a sex offender [for] life” through his
testimony at the June 12, 2012 trial. Doc. 9 at 7. By this
action, Martinez seeks “redress of grievances”
and damages for the alleged constitutional violations. Doc. 9
research reveals that on June 12, 2012, a jury convicted
Martinez, under the alias of Roberto Arnoldo Barrientos, of
misdemeanor indecent exposure for the conduct underlying his
June 18, 2011 arrest, and he was sentenced to 180 days
confinement. See State v. Barrientos, No. M11-13388
(Crim. Dist. No. 3, Dallas Cty., June 12, 2012),
aff'd, No. 05-12-00882-CR (Tex. App.-Dallas July
17, 2013). Subsequently, Martinez was twice convicted of
failing to register as a sex offender, the latter conviction
enhanced by the prior conviction, and was sentenced to 18
months in state jail and 7 years in prison, respectively.
See State v. Martinez, No. F11-13303-W (363rd Jud.
Dist. Court, Dallas Cty., Apr. 24, 2012), aff'd,
No. 05-12-00648-CR (Tex. App.-Dallas June 24, 2013);
State v. Martinez, No. F14-00302-J (Crim. Dist. No.
3, Dallas Cty., Sep. 17, 2014), aff'd, No.
05-14-01238-CR, 2015 WL 6750812 (Tex. App.-Nov. 4, 2015, pet.
ref'd). On December 19, 2017, Martinez was again
convicted of failure to register, enhanced with previous
conviction, and was sentenced to two years' confinement.
State v. Martinez, No. F17-18761-K (Crim. Dist.
Court No. 4, Dallas Cty., Dec. 19, 2017). It is this
offense for which he is presently confined.
the plaintiff is proceeding in forma pauperis, his
complaint is subject to screening under 28 U.S.C. §
1915(e)(2)(B). That statute provides for the sua
sponte dismissal of a complaint if the Court finds that
it (1) is frivolous or malicious, (2) fails to state a claim
upon which relief may be granted, or (3) seeks monetary
relief against a defendant who is immune from such relief. A
complaint is frivolous when it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A complaint lacks an
arguable basis in law when it is “based on an
indisputably meritless legal theory.” Id. at
327. A complaint fails to state a claim upon which relief can
be granted if it does not plead “enough facts to state
a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
Court must always liberally construe pleadings filed by
pro se litigants. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (noting pro se pleadings
“must be held to less stringent standards than formal
pleadings drafted by lawyers”); Cf.Fed. R.
Civ. P. 8(e) (“Pleadings must be construed so as to do
justice.”). Even under this most liberal construction,
however, Martinez fails to state a viable claim.
maintains that he was wrongfully arrested on June 18, 2011,
and that by his June 12, 2012 testimony, Kaiser conspired to
imprison and require that he register as a sex offender for
life. Thus, the deadlines for filing suit for wrongful arrest
and conspiracy to wrongfully imprison were June 18, 2013 and
June 12, 2014, respectively. See Owens v.
Okure, 488 U.S. 235, 249-50 (1989) (state forum's
personal injury statute of limitations applies in a section
1983 case); Stanley v. Foster, 464 F.3d 565, 568
(5th Cir. 2006) (Texas section 1983 actions are governed by
the two-year personal injury limitations period; court can
raise affirmative defense of statute of limitations sua
sponte in in forma pauperis actions); Tex. Civ.
Prac. & Rem. Code Ann. § 16.003(a) (West 2019).
October 24, 2018 is the earliest possible date on which
Martinez's original complaint can be deemed
filed--well outside of both limitations'
cannot demonstrate that he is entitled to equitable tolling
of either limitation period due to a “legal
disability.” SeeTex. Civ. Prac. & Rem.
Code Ann.' 16.001(a) (West 2019) (“a person is
under a legal disability if the person is: (1) younger than
18 years of age, regardless of whether the person is married;
or (2) of unsound mind.”). And his imprisonment does
not provide a basis to toll the statute of limitations under
Texas law. See Gonzales v. Wyatt, 157 F.3d
1016, 1020 (5th Cir. 1998). Accordingly, Martinez's
Amended Complaint, Doc. 9, wholly fails to state a
claim to relief that is plausible on its face. See
Jones v. Bock, 549 U.S. 199, 215 (2007) (concluding
that when the allegations “show that relief is barred
by the applicable statute of limitations, the complaint is
subject to dismissal for failure to state a claim”).
LEAVE TO AMEND
a pro se plaintiff should be granted leave to amend
his complaint prior to dismissal. See Brewster
v. Dretke, 587 F.3d 764, 767-768 (5th Cir. 2009)
(“leave to amend is not required . . . if the plaintiff
has already pleaded his ‘best case.'”). For
the reasons outlined herein, Martinez's claims are
fatally infirm. Thus, granting leave to amend would be futile
and cause needless delay.
foregoing reasons, this action should be summarily
DISMISSED WITH PREJUDICE for failure to
state a claim upon which relief can be granted.
See28 U.S.C. § 1915(e)(2)(B). This dismissal
will count as a “strike” or ...