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McCall v. State

United States District Court, N.D. Texas, Dallas Division

September 5, 2019

ROBERT BURNS MCCALL, # 31541, Plaintiff,
v.
STATE OF TEXAS, et al., Defendants.

         Referred to U.S. Magistrate Judge[1]

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ JUDGE

         Based on the relevant filings and applicable law, the plaintiff's complaint should be DISMISSED with prejudice.

         I. BACKGROUND

         Robert Burns McCall (Plaintiff), an inmate in the Lamb County Jail, sues the State of Texas, the state district judge, the prosecutor, and his attorney (collectively Defendants) under 42 U.S.C. § 1983 for allegedly violating his civil rights during his prosecution for sexual assault of a child under 14. (See doc. 3 at 1, 3-4.)[2] He claims that he was falsely convicted of that offense on November 18, 1991, after Defendants hid the evidence that would have proven his innocence, sealed the proof, and blocked his attempts to receive copies of that proof. (Id. at 4.) He alleges that the judge “coerced, intimidated and illegally sentenced [him] without evidence of guilt” to 25 years' imprisonment, after which Plaintiff was civilly committed in the Texas Civil Commitment Center until he no longer demonstrated a “behavior abnormality.” (Id. at 3-4.) He seeks a copy of the evidence and $250 million dollars. (Id.) No. process has issued.

         II. PRELIMINARY SCREENING

         Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from an officer of a governmental entity, his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Because he is proceeding in forma pauperis, his complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it 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 claim 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 may be granted when it fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

         III. SECTION 1983

         Plaintiff seeks monetary damages under 42 U.S.C. § 1983. That section “provides a federal cause of action for the deprivation, under color of law, of a citizen's ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States” and “afford[s] redress for violations of federal statutes, as well as of constitutional norms.” Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). To state a claim under § 1983, Plaintiff must allege facts that show (1) he has been deprived of a right secured by the Constitution and the laws of the United States; and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005).

         A. Statute of Limitations

         Courts “may raise the defense of limitations sua sponte.” Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). “[W]here 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, those claims are properly dismissed” under 28 U.S.C. § 1915(e)(2)(B). Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993); accord, Stanley v. Foster, 464 F.3d 565, 568 (5th Cir. 2006).

         Federal courts look to the law of the forum state to determine the length of the statute of limitations applicable in § 1983 cases. Wallace v. Kato, 549 U.S. 384, 387 (2007). The general statute of limitations governing personal injuries in the forum state provides the applicable limitations period. 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, so Plaintiff had two years from the date his claims accrued to file suit. Id.; accord Hatchet v. Nettles, 201 F.3d 651, 653 (5th Cir. 2000).

         While state law determines the length of the § 1983 limitations period, federal law determines the accrual date. Wallace, 549 U.S. at 388; Walker v. Epps, 550 F.3d 407, 414 (5th Cir. 2008). Generally, a claim accrues when the plaintiff has “a complete and present cause of action”, or “when the plaintiff can file suit and ...


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