Perez v. Marr et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
MICHAEL MANUEL MARTIN PEREZ, §
§
§
§
§
§
§
§
§
Plaintiff,
v. Case No. 6:25-cv-00054
JUSTIN MARR, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Michael Manuel Martin Perez, appearing pro se and in forma pauperis, has filed
this prisoner civil rights action pursuant to 42 U.S.C. § 1983. (Doc. Nos. 1, 26, 26-2.) Plaintiff
asserts claims against various defendants under the Fourth Amendment, the Fourteenth
Amendment, and various Texas state laws. For the reasons discussed below, the district court
should DISMISS Plaintiff’s complaint with prejudice.
A. Jurisdiction.
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 and
supplemental jurisdiction over Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367. This
case has been referred to the undersigned for case management and recommendations on
dispositive matters pursuant to 28 U.S.C. § 636.
B. Proceedings.
Plaintiff filed this suit pursuant to 42 U.S.C. § 1983, initially naming as defendants
Victoria County Sheriff Justin Marr (“Sheriff Marr”), Victoria County Sheriff’s Department
Officer “S Salinas” (“Officer Salinas”), and Victoria County Sheriff’s Department Officer
United States District Court
Southern District of Texas
ENTERED
March 16, 2026
Nathan Ochsner, Clerk
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Chantal Wall (“Officer Wall”). (Doc. No. 1.) The Court directed Plaintiff to answer a screening
questionnaire. (Doc. No. 24.) Plaintiff complied. (Doc. Nos. 26, 26-2.)
Plaintiff’s questionnaire response added a new claim, for excessive force. (Doc. No. 26-
2, p. 3.) He also indicated that he wished to add several more defendants: the two Victoria
County Sheriff’s deputies who had arrested him (“John Does 1 and 2”); an unnamed jailer at the
Victoria County Sheriff’s Department who allegedly used excessive force against him (“John
Doe 3”); a duty sergeant at the jail (“John Doe 4”); a medical provider at the jail (“Jane Doe 1”);
Victoria County Assistant District Attorney Andrea Harvey (“ADA Harvey”); the unnamed
elected Victoria County District Attorney (“the Elected DA”); and the unnamed judge of the
state district court in Victoria County (“the State District Court Judge”).1 (Doc. No. 26-2, pp. 3,
5-6.) By separate order, the undersigned will order that John Does 1 through 4, Jane Doe 1,
ADA Harvey, the Elected DA, and the State District Court Judge be added as defendants in this
case.
C. Plaintiff’s factual allegations.
1. Detention at the Victoria County Jail.
Plaintiff claims that on or about April 2, 2022, he was arrested by two members2 of the
Victoria County Sheriff’s Office for failing to provide identification and possession of a
controlled substance. (Doc. No. 26, pp. 1-3.) Plaintiff alleges that he was taken to the Victoria
County Jail. Id. at 2. Once at the jail, Plaintiff claims he was brought before a state magistrate
within 48 hours, sometime between April 2 and April 4, on those charges. Id. at 3. The state
1 Plaintiff refers to this person as the judge of the “277th District Court” in “Victoria County.” Id. at 6. The 277th
Judicial District Court, however, is located in Williamson County, which is nearly 150 miles from Victoria County.
Plaintiff likely means the 377th Judicial District Court, which is located in Victoria County.
2 Plaintiff refers to these arresting officers as John Does 1 and 2.
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magistrate set a bond, Plaintiff says. Id. Plaintiff was unable to pay the required amount to
secure his release, so he remained in custody. Id.
Plaintiff alleges that he filed a “motion to court” sometime in April 2022 seeking
dismissal of his criminal charge and relief for illegal arrest and detention. He states that the court
did not respond. (Doc. No. 26-2, p. 5.) The undersigned construes Plaintiff’s allegation as
claiming that he wrote to the State District Court Judge.
On July 2 or 3, 2022, Plaintiff was granted a personal recognizance bond and was
released from custody. (Doc. No. 26, p. 4; Doc. No. 26-2, p. 4.) Plaintiff alleges that he
thereafter allegedly contacted the office of the prosecuting attorney, ADA Harvey, seeking to
“resolve the issue of wrongful incarceration” – that being the approximately 90-ish days he spent
in custody because he did not make bond. Id. Plaintiff claims he was told that ADA Harvey had
decided not to pursue his criminal charges. Id. By the time of his release, Plaintiff alleges,
Sheriff Marr had auctioned off all his property. (Doc. No. 26-2, p. 1.)
Plaintiff alleges that he never should have “been remanded to custody in the first place”
because he was innocent of the criminal charges. (Doc. No. 26, p. 4; Doc. No. 26-2, p. 1.) He
claims that Sheriff Marr “is personally and officially liable for having received or confined a
prisoner delivered and surrendered to his office, by law and according to government code.”
(Doc. No. 26, p. 4.) Plaintiff levels a similar claim against Officer Salinas. Id.
2. Alleged hand injury at the Victoria County Jail.
Plaintiff alleges that near the end of April 2022, while he was in custody at the Victoria
County Jail, John Doe 3 “intentionally crushed [his] hand in an iron tray port out of “anger.”
(Doc. No. 26-2, p. 3.) Plaintiff was treated by Jane Doe 1, a Victoria County medical provider,
and was given Ibuprofen. Id.
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Plaintiff claims that he filed a grievance regarding his alleged broken hand in April or
May 2022. (Doc. No. 26, p. 5.) Plaintiff alleges that he filed this grievance with a sergeant on
duty (John Doe 4) or with medical – he does not recall – and either received no response or was
told to see medical. Id. He also claims to have filed a grievance appeal in May or June 2022 for
that alleged failure to respond, but that he did not receive a response to that grievance either. Id.;
Doc. No. 26-2, pp. 3-4. Plaintiff alleges that his injury forced him to live “on the streets of
Victoria” following his release from detention because he could not use his right hand. (Doc.
No. 26-2, p. 4.)
3. Request for time credit.
Plaintiff alleges that he notified Officer Wall, whom he describes as a “Records
Administration Officer,” and Officer Salinas, whom he variously describes as a jail administrator
or “Release Administration Officer,” of, as he puts it, “lost time exhaustive, all available remedy
and authorities; with no relief displaying, a deliberate indifference to correct this obvious
discrepancy.” (Doc. No. 1, pp. 2, 3.)
Plaintiff later returned to the Victoria County Jail around January 2024 for unauthorized
use of a motor vehicle. (Doc. No. 26-2, pp. 4-5.) This charge was unrelated to Plaintiff’s 2022
charges for failure to identify and possession of a controlled substance. Id. at 4. That month, he
allegedly filed a grievance with Officer Wall, requesting time credit for the approximately three-
month period he had spent at the jail in 2022. (Doc. No. 26, pp. 5-6.) Officer Wall allegedly
responded in January or February 2024 that Plaintiff had received all the credit to which he was
entitled. Id.
Plaintiff alleges that Officer Wall “failed to provide an accurate accounting for [his] time
incarcerated,” or that she “colluded” to lose his records. (Doc. No. 26-2, p. 2.) Officer Wall
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allegedly “refused to account for time and refused to provide records by Open Records.” Id.
Plaintiff claims that Officer Wall is “responsible for crediting prisoners, keeping accurate
records, providing documents.” Id. at 3. Her alleged failure to properly keep records or her
collusion to lose those records, Plaintiff claims, amounts to due process and civil rights
violations under federal law. Id. Plaintiff also claims that Officer Wall violated state law
through her “abuse of office, abuse of official capacity, abuse of authority, prosecutorial
conspiracy, profiling, acts of a deputy, incompetence[, and] bad faith.” Id. Plaintiff sues Officer
Wall in both her official and personal capacities. Id. at 2.
D. Plaintiff’s legal claims and requested relief.
Plaintiff alleges that these actions amount to a violation of federal law under the “Tim
Cole Act” and the United States Constitution (for illegal arrest, unlawful incarceration, illegal
search and seizure, “civil rights violations,” Brady violations, Due Process, and “security of
person and property”). (Doc. No. 26-2, p. 1.) Additionally, he alleges violations of Texas state
law for “abuse of office, abuse of official capacity, abuse of authority, prosecutorial conspiracy,
profiling, acts of a deputy, incompetence, and bad faith.” Id.
Liberally construing his allegations, the Court understands Plaintiff to be raising the
following claims:
• Fourth Amendment claim against John Does 1 and 2 for wrongfully arresting Plaintiff in
April 2022;
• Fourteenth Amendment due process claims against Sheriff Marr for holding him as a
prisoner, rather than releasing him from custody, “for an offense [he] did not commit,
operating under an assumption of guilt, negligently” (Doc. No. 26-2, p. 1) and against
Officer Salinas and Officer Wall for likewise holding him illegally.
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• Texas state claims of false imprisonment, malicious prosecution, civil conspiracy,
negligence, and bad faith against Sheriff Marr, Officer Salinas, and Officer Wall.
• Fourteenth Amendment excessive force claim and Texas civil assault and battery claim
against John Doe 3 for causing Plaintiff’s hand injury.
Plaintiff’s seeks injunctive relief: medical treatment from a specialist for his hand. (Doc.
No. 26-2, p. 3.) Plaintiff also requests unspecified compensatory damages for lost wages, lost
property (tools, vehicle, and work attire that were allegedly confiscated and auctioned), medical
bills that Plaintiff allegedly incurred at the Brazos County Jail for an infection stemming from
having his hand crushed in the tray port, and pain and suffering. Id. He also seeks punitive
damages to “hold accountable these individuals, [so] that these incidents don’t happen to citizens
in the future. Especially, those of us who fight demons daily and the disadvantages they bring.”
Id.
E. Legal standard.
The Prison Litigation Reform Act (“PLRA”) provides that any prisoner action brought
under federal law must be dismissed if the complaint is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief from a defendant immune from such
relief. 42 U.S.C. § 1997e(c); see also 28 U.S.C. § 1915A. In this case, Plaintiff’s action is
subject to screening regardless of whether he prepays the entire filing fee or proceeds as a
pauper. See, e.g., Ruiz v. United States, 160 F.3d 273, 274 (5th Cir. 1998) (per curiam); Martin
v. Scott, 156 F.3d 578, 579-580 (5th Cir. 1998) (per curiam).
A claim is frivolous if it has no arguable basis in law or fact. Neitzke v. Williams, 490
U.S. 319, 328-29 (1989). A claim has no 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
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clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (citations omitted).
A claim has no arguable basis in fact if “after providing the plaintiff the opportunity to present
additional facts when necessary, the facts alleged are clearly baseless.” Talib v. Gilley, 138 F.3d
211, 213 (5th Cir. 1998) (citing Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)).
“In analyzing the complaint, [the district court] will accept all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188 F.3d 322, 324
(5th Cir. 1999) (per curiam). “The issue is not whether the plaintiff will ultimately prevail, but
whether he is entitled to offer evidence to support his claim. Thus, the court should not dismiss
the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible
theory that he could prove consistent with the allegations in the complaint.” Id. (cleaned up).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff must allege sufficient facts in support of its legal conclusions that give rise to a
reasonable inference that Defendants are liable. Id.; Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 556 (2007). The factual allegations must raise Plaintiff’s claim for relief above the level of
mere speculation. Twombly, 550 U.S. at 555. If the complaint, taken as a whole, gives rise to a
plausible inference of actionable conduct, Plaintiff’s claim should not be dismissed. Id.
Furthermore, as Plaintiff proceeds pro se, the Court construes his complaint liberally in his favor.
See Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002) (citing Haines v. Kerner, 404 U.S. 519,
520 (1972)).
F. Discussion.
Plaintiff alleges that he was unlawfully detained for 91 days by Defendants. (Doc. No.
26, pp. 2-3.) Construing his complaint liberally, he raises several claims under federal and state
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law arising from his detention. Under federal law, through § 1983, he alleges violations of his
Fourth and Fourteenth Amendment rights. He claims his Fourth Amendment rights were
violated through his allegedly unlawful arrest, false imprisonment, and malicious prosecution.
Additionally, he claims that his due process rights under the Fourteenth Amendment were
violated and that he was subjected to excessive force as a pretrial detainee. Plaintiff also alleges
violations of Texas law for civil conspiracy, negligence, bad faith, and civil assault and battery.
(Doc. No. 26, p. 8.)
“Although the defense of limitations is usually an affirmative defense raised by a
defendant, a district court may raise the statute of limitations defense sua sponte in prisoner cases
that are subject to judicial screening.” Tawe v. Lew, Civ. No. H-22-0123, 2023 WL 8437369, at
*3 (S.D. Tex. Dec. 5, 2023) (Lake, J.) (citing Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990);
Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989)). Plaintiff’s claims arise from events
occurring between April 2, 2022 and July 2, 2022. (Doc. No. 26, p. 1.) Plaintiff, however, did
not file suit until nearly three years later, on March 7, 2025.3 See Doc. No. 1. Plaintiff’s federal
and state claims are therefore barred by the applicable statute of limitations. Each of Plaintiff’s
claims is examined in turn, starting with his claims arising under federal law, then turning to his
state claims. Whether the limitations period on any of his claims is tolled follows that
discussion.
3 Under the prison mailbox rule, an inmate’s pleading is deemed filed on the date the pro se inmate submits his
pleading to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988). Plaintiff’s original
complaint was signed and executed on March 7, 2025. (Doc. No. 1, p. 4.) The undersigned will assume that he
deposited the complaint with prison authorities for mailing on the same day. Thus, the undersigned deems this case
to have been filed on March 7, 2025.
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1. Statute of limitations: federal claims.
Plaintiff alleges three violations of his constitutional rights through § 1983. First, he
claims that his Fourth Amendment rights were violated when he allegedly was unlawfully
arrested and falsely imprisoned. (Doc. No. 26-2, pp. 1-2.) Second, liberally construed, he
alleges that he was maliciously prosecuted in violation of the Fourth Amendment when he was
held in custody following his appearance before the state magistrate despite allegedly being
innocent. Id. Third, he claims that his Fourteenth Amendment due process rights were violated
and that he was subjected to excessive force as a pretrial detainee. Id.
Section 1983 “provides a federal cause of action, but federal courts look to [a] state's
statute of limitations for personal-injury torts to decide when § 1983 claims toll.” Winfrey v.
Rogers, 901 F.3d 483, 492 (5th Cir. 2018) (citing Wallace v. Kato, 549 U.S. 384, 387 (2007)).
“In Texas, the applicable limitations period is two years” for personal injury claims. Id. (quoting
Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993); Tex. Civ. Prac. & Rem. Code §
16.003(a)). While the limitations period is determined by state law, “the accrual date of a § 1983
cause of action is a question of federal law that is not resolved by reference to state law.”
Wallace, 549 U.S. at 388. “In defining the contours and prerequisites of a § 1983 claim,
including its rule of accrual, courts are to look first to the common law of torts.” Winfrey, 901
F.3d at 492 (quoting Manuel v. City of Joliet, Ill., 580 U.S. 357, 370 (2017)).
a. Unlawful arrest and false imprisonment.
Plaintiff’s unlawful arrest and false imprisonment claims under the Fourth Amendment
are untimely because the statute of limitations period began to run not later than April 4, 2022,
the time at which “the claimant bec[a]me[] detained pursuant to legal process.” Winfrey, 901
F.3d at 492 (quoting Wallace, 549 U.S. at 397). In this case, Plaintiff’s claims accrued when he
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appeared before the state magistrate between on or about April 2 and April 4, 2022. The
Supreme Court held in Wallace that “false imprisonment ends once the victim becomes held
pursuant to such process—when, for example, he is bound over by a magistrate or arraigned on
charges.” Wallace, 549 U.S. at 390.
Because Plaintiff alleges that he was bound over by the state magistrate sometime
between April 2 and April 4, 2022, he was required to file this action within two years after that
date. Plaintiff filed this action on March 7, 2025, so he exceeded the two-year limitations period
by a wide margin. Accordingly, his claims for unlawful arrest and false imprisonment are
untimely and should be dismissed with prejudice. Cf. Jackson v. City of Houston Police Dep't,
No. 4:22-CV-2805, 2023 WL 4238798, at *3 (S.D. Tex. June 5, 2023) (Bryan, M.J.), adopted,
2023 WL 4237098 (S.D. Tex. June 28, 2023) (dismissing false arrest and false imprisonment
claims because they were raised more than two years after accrual).
b. Malicious prosecution.
Plaintiff also alleges malicious prosecution under the Fourth Amendment. This claim is
also untimely, but it potentially has an even shorter statute of limitations period. Some authority
indicates that a Fourth Amendment malicious prosecution claim is subject to a two-year statute
of limitations. See Barfield v. Osbey, No. 4:24-cv-2581, 2025 WL 816718, at *3 (S.D. Tex. Mar.
13, 2025) (Hanen, J.). Meanwhile, under Texas law, “[a] person must bring suit for malicious
prosecution, libel, slander, or breach of promise of marriage not later than one year after the day
the cause of action accrues.” Tex. Civ. Prac. & Rem. Code § 16.002. Turning to federal law to
determine when the action accrues, see Wallace, 549 U.S. at 388, Plaintiff’s malicious
prosecution claim “accrues only once the underlying criminal proceedings have resolved in the
plaintiff’s favor.” McDonough v. Smith, 588 U.S. 109, 116 (2019).
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Plaintiff claims that he was never charged and that he was released from the Victoria
County Jail on July 2, 2022. (Doc. No. 26, pp. 1-4.) “Malicious prosecution requires, as an
element of the tort, the favorable termination of proceedings.” Haygood v. Morrison, 116 F.4th
439, 446 (5th Cir. 2024), cert. denied sub nom. Haygood v. Camp Morrison, __ U.S. __, 145 S.
Ct. 1329 (2025) (citing Restatement (Second) of Torts § 658 (Am. Law Inst. 1965)). And “[t]o
demonstrate a favorable termination of a . . . 1983 [claim] for malicious prosecution, a plaintiff
need only show that his prosecution ended without a conviction.” Thompson v. Clark, 596 U.S.
36, 39 (2022).
While Plaintiff does allege that his prosecution ended without a conviction, his claim is
still untimely because the date he provides for that result is July 2, 2022. Plaintiff was thus
required to bring this claim by July 2, 2024 (or 2023, if a one-year limitations period applies),
which he failed to do. His malicious prosecution claim should therefore be dismissed with
prejudice.4
c. Due process claims.
Plaintiff claims that his due process rights under the Fourteenth Amendment were
violated while he was detained at the Victoria County Jail. See Doc. No. 26-2, pp. 1-2. He does
not specify whether his substantive or procedural due process rights were violated, so the
undersigned examines both. Id. Either way, Plaintiff’s claims are barred by the statute of
limitations after applying the same two-part framework to determine timeliness and accrual.
4 Because Plaintiff’s claims are untimely, it is unnecessary to determine whether his allegations of illegal arrest,
false imprisonment, and malicious prosecution state a claim upon which relief may be granted. Plaintiff’s factual
allegations, however, do not suggest that he was arrested without probable cause or that the state magistrate erred in
binding him over for further proceedings.
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Plaintiff’s allegations under § 1983 are subject to Texas’ two-year limitations period. See
Winfrey, 901 F.3d at 492. For the accrual of procedural due process claims, “[t]he constitutional
violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete
unless and until the State fails to provide due process.” Zinermon v. Burch, 494 U.S. 113, 126
(1990). “This means that a procedural due process claim does not accrue for statute of
limitations purposes until the relevant procedures conclude.” Hilts v. City of Port Arthur, No.
1:24-CV-00238, 2025 WL 2331134, at *8 (E.D. Tex. Mar. 21, 2025). Here, Plaintiff does not
specify when he was denied procedural due process, but at the latest, his proceedings concluded
on July 2, 2022, when he was released from the custody he claims was wrongful. He was
therefore required to bring his procedural due process claim not more than two years thereafter,
by July 2, 2024. He did not sue until March 2025, so any procedural due process claim is
untimely.
Plaintiff’s liberally construed substantive due process claim is also untimely. Substantive
due process claims accrue and “the limitation period begins to run the moment the plaintiff
becomes aware she has suffered an injury or has sufficient information to know that she has been
injured.” King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 762 (5th Cir. 2015) (internal
quotation omitted). Plaintiff alleges that Defendants violated his due process rights by detaining
him when he “never should have been.” (Doc. No. 26, p. 4.) This allegation sounds in abuse of
authority by Defendants.5 (Doc. No. 26-2, p. 3.) Reading Plaintiff’s complaint most favorably
to him, any substantive due process claim accrued when he was released from the allegedly
5 “Abuse of authority by law enforcement personnel may violate substantive due process under certain
circumstances.” Gressett v. City of New Orleans, Civ. No. 17-16628, 2018 WL 3642008, at *3 (E.D. La. Aug. 1,
2018), aff’d sub nom. Gressett v. New Orleans City, 779 F. App’x 260 (5th Cir. 2019) (citing Petta v. Rivera, 143
F.3d 895 (5th Cir. 1998)).
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wrongful custody on July 2, 2022. Plaintiff brought this suit in March 2025, so any claim is thus
untimely and should be dismissed with prejudice.6
d. Excessive force claim.
Plaintiff alleges that during the third week of April 2022, an unidentified Victoria County
Deputy Sheriff (“John Doe 3”) “intentionally crushed my hand in the iron tray port in anger.”
(Doc. No. 26-2, p. 3.) Plaintiff received medical attention. Id. Plaintiff claims that he filed
grievances about the matter while at the jail but that nothing was done. Id.
Because Plaintiff was a pretrial detainee at the time of the alleged incident, his excessive
force allegation can be liberally construed as being brought under the Fourteenth Amendment.
Texas’ two-year limitations period for personal injury actions applies to Fourteenth Amendment
excessive force claims. See Moreno v. Williams, No. 7:24-CV-0245, 2024 WL 5248427, at *2
(S.D. Tex. Nov. 12, 2024) (Hacker, M.J.), adopted, 2024 WL 5247205 (S.D. Tex. Dec. 30,
2024); see also Mosley v. Houston Cmty. Coll. Sys., 951 F. Supp. 1279, 1299 (S.D. Tex. 1996)
(Atlas, J.). Plaintiff’s excessive force claim accrued on the date he was subjected to the alleged
excessive force, because he knew or had reason to know of the injury forming the basis for the
claim. See Jenkins v. Tahmahkera, 151 F.4th 739, 747-48 (5th Cir. 2025) (citing Gartrell v.
Gaylor, 981 F.2d 254, 257 (5th Cir. 1993)).
Here, Plaintiff claims that the alleged excessive force occurred during the third week of
April 2022. His suit was therefore required to be filed within two years: not later than April
6 The recommended dismissal of these claims on limitations grounds renders it unnecessary to determine whether
Plaintiff has stated a Fourteenth Amendment claim upon which relief may be granted. In his complaint, though,
Plaintiff does not allege that Sheriff Marr and the other jail officials had any authority to release Plaintiff from
custody before July 2, 2022, the date on which his personal recognizance bond was granted. Asked in the
questionnaire to explain why he believed these officials had authority to release him sooner, Plaintiff replied only
that he “should not have been remanded to custody in the first place” and that the jail officials were liable merely for
having received and confined him once he was delivered to the jail. (Doc. No. 26, p. 4.)
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2024. Plaintiff brought this suit in March 2025, so his excessive force claim is limitations-barred
and should be dismissed with prejudice.
2. Statute of limitations: state claims.
Plaintiff’s factual allegations, liberally construed, raise four claims under Texas law: (1)
civil conspiracy; (2) negligence; (3) bad faith; and (4) civil assault and battery. All four are
untimely.
a. Civil conspiracy.
Plaintiff alleges that the defendants engaged in a “prosecutorial conspiracy” against him.
(Doc. No. 26-2, p. 1.) Texas does not recognize a cause of action for prosecutorial conspiracy,
but it does recognize one for civil conspiracy. “In Texas, a civil conspiracy is a combination ‘to
accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.’” Arthur
W. Tifford, PA v. Tandem Energy Corp., 562 F.3d 699, 709 (5th Cir. 2009) (quoting Lane v.
Halliburton, 529 F.3d 548, 564 (5th Cir. 2008)).
Civil conspiracy however, “is not an independent tort,” so “it follows that the claim does
not have its own statute of limitations.” Agar Corp., Inc. v. Electro Cirs. Int’l, LLC, 580 S.W.3d
136, 142 (Tex. 2019). Civil conspiracy claims “are generally subject to a two-year statute of
limitations,” however, where the underlying tort is based in personal injury. Acad. Of Allergy &
Asthma in Primary Care v. Quest Diagnostics, Inc., 998 F.3d 190, 201 (5th Cir. 2021) (citing
Navarro v. Grant Thornton, LLP, 316 S.W. 3d 715, 719 (Tex. App.—Houston [14th Dist.] 2010,
no pet.)). The “cause of action for the underlying tort typically accrues as soon as the tort causes
those damages.” Agar, 580 S.W.2d at 142 (citing Murphy v. Campbell, 964 S.W.2d 265, 270
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(Tex. 1997)). Once again, Plaintiff’s complaint was filed more than two years after his alleged
torts accrued, so his civil conspiracy claim is untimely and should be dismissed with prejudice.7
b. Negligence.
Plaintiff’s next state law claim is one for, as he puts it, incompetence. (Doc. No. 26-2, p.
1.) “In Texas, gross incompetence, or gross negligence, are not separate causes of action apart
from negligence.” Holloman Corp. v. N2 Sols. LLC, No. CV H-19-4344, 2022 WL 2277508, at
*2 (S.D. Tex. June 24, 2022) (Miller, J.) (citing RLI Ins. Co. v. Union Pac. Ry. Co., 463 F. Supp.
2d 646, 649–50 (S.D. Tex. 2006) (Hittner, J.)). Because the statute of limitations on Plaintiff’s
negligence claim began to run when the alleged “wrongful act cause[d] some legal injury,”
Mustafa v. Americo Energy Res., LLC, 650 S.W.3d 760, 764 (Tex. Ct. App. – Houston [14th
Dist.] 2022), his claim accrued, at the latest, on July 2, 2022, when he was released from
custody. Plaintiff’s delay in bringing this action until March 2025 renders any negligence claim
of his barred by the two-year statute of limitations.
c. Bad faith.
Plaintiff’s third Texas law claim is for bad faith. Exactly what actions allegedly
constituted bad faith on the part of the defendants is unclear, but Plaintiff’s claim clearly stems
from his allegedly wrongful detention between April and July 2022. Plaintiff’s claim should be
dismissed.
First, there is no standalone cause of action for “bad faith” under Texas law. See Yazdchi
v. Wells Fargo Bank, NA, No. 01-18-01023-CV, 2020 WL 3820885, at *4 (Tex. Ct. App. –
7 In any event, Plaintiff fails to allege an agreement between two or more persons on an object to be accomplished,
as would be required for a viable allegation of civil conspiracy under Texas law. See Centennial Bank v. Holmes,
717 F. Supp. 3d 542, 2 (N.D. Tex. 2024) (citing Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 864 (Tex. App. –
Houston [14th Dist.] 2001, pet. denied)).
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Houston [1st Dist.] July 7, 2020). A statutory bad faith cause of action exists, but in the context
of insurance coverage, a situation not presented here. See Tex. Ins. Code Chapter 541.
In any event, under Texas law, a “bad faith claim must be brought within two years of the
date on which limitations begins to run.” Garza-Trevino v. New England Fin., No. A-07-CA-
495, 2008 WL 11333880, at *2 (W.D. Tex. May 14, 2008) (citing Provident Life and Acc. Ins.
Co. v. Knott, 128 S.W.3d 211, 221-23 (Tex. 2003)). “As a general rule, a cause of action accrues
and the statute of limitations begins to run when facts come into existence that authorize a party
to seek a judicial remedy.” Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex.
2003) (citing Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514
(Tex. 1998)). Here, Plaintiff’s bad faith claim (such as it was) accrued, at the latest, on July 2,
2022, the date on which he claims to have been released from the Victoria County Jail. (Doc.
No. 26, p. 1.) The two-year time period to file his bad faith claim thus expired on July 2, 2024,
and his March 7, 2025, complaint is untimely. Plaintiff’s claim should therefore be dismissed
with prejudice.
d. Civil assault and battery.
Plaintiff’s final Texas cause of action is for civil assault and battery. He claims that his
hand was broken by John Doe 3. (Doc. No. 26-2, pp. 3-4.) Civil assault and battery are personal
injury claims to which Texas’ two-year limitations period applies. Obeginski v. United Airlines
Inc, No. 4:21-CV-03215, 2022 WL 22608254, at *1 (S.D. Tex. Dec. 21, 2022) (Eskridge, J.)
(citing Caver v. Clayton, 618 S.W.3d 895, 899 (Tex App—Houston [14th Dist.] 2021, no pet.).
Plaintiff alleges that the assault and battery took place during the third week of April 2022, so he
was required to bring his claim not later than April 2024. Plaintiff did not sue until March 2025,
so his claim is untimely and should be dismissed.
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3. Any tolling does not render Plaintiff’s claims timely.
Plaintiff’s claims are barred by the statute of limitations, as discussed, unless they are
subject to statutory or equitable tolling. Gartrell, 981 F.2d at 257 (“In applying the forum state’s
statute of limitations, the federal court should also give effect to any applicable [state] tolling
provisions”); Moore v. Collier, Civ. No. H-20-2048, 2020 WL 3250983, at *3 (S.D. Tex. June
16, 2020) (Ellison, J.) (recognizing that statutory and equitable tolling are available in the PLRA
context).
Texas recognizes statutory tolling, which “tolls the running of the limitations period
when a person is prevented from exercising a legal remedy by the pendency of legal
proceedings.” Gartrell, 981 F.2d at 257. This rule applies “where a state prisoner is required to
exhaust state remedies before proceeding with a claim in federal court.” Id. The PLRA requires
a prisoner to exhaust all administrative remedies available in the prison’s grievance process prior
to filing suit, so statutory tolling takes effect when a grievance is filed. Williams v. Estelle Unit
Prison Offs., No. 23-20036, 2024 WL 3026778, at *2 (5th Cir. June 17, 2024) (citing Huskey v.
Jones, 45 F.4th 827, 831 (5th Cir. 2022)).
Plaintiff was ordered to provide additional information about the grievances he filed
while in the Victoria County Jail. (Doc. No. 24, p. 4.) He provided that information regarding
two key events: the filing of a grievance for the alleged breaking of his hand; and the filing of his
motion challenging his detention. (Doc. No. 26, pp. 5-6). Even if those events tolled the
limitations period under Texas law, neither tolled the statute of limitations period long enough to
render Plaintiff’s federal lawsuit timely.
First, Plaintiff’s answers indicate that he filed a grievance for his broken hand in April
2022; he alleges that this grievance was answered in that same month. (Doc. No. 26, p. 5.) This
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tolling period is insufficient to render Plaintiff’s complaint timely because a month passed (at
most) between the filing of the grievance and its answer. Plaintiff would have required nearly 11
months of “grievance tolling” to render his claim timely. Even then, any such tolling would
apply only to Plaintiff’s claim for his allegedly broken hand, not to the rest of his claims.
Second, Plaintiff alleges that he filed a “motion” to “the court” (construed by the undersigned
here as the State District Court Judge) regarding his “illegal arrest and detention.” (Doc. No. 26,
p. 5.) Because Plaintiff’s grievance was required to be filed with the jail, and not “the court,”
that alleged motion did not toll the statute of limitations for his unlawful arrest, false
imprisonment, and malicious prosecution claims.
Plaintiff’s claims are not subject to equitable tolling, either. The equitable tolling
principles of the forum state control in § 1983 cases. See Moore, 2020 WL 3250983, at *3
(citing King-White, 803 F.3d at 764). Under Texas law, equitable tolling is “sparingly”
warranted, and it is to be used only in cases where the plaintiff has excusable ignorance of the
limitations period and has “diligently pursued his rights.” Montgomery v. Hale, 648 F. App’x
444, 444-45 (5th Cir. May 16, 2016) (unpublished) (citing Hand v. Stevens Transp., Inc. Emp.
Benefit Plan, 83 S.W.3d 286, 293 (Tex. Ct. App.—Dallas 2002, no pet.)). Equitable tolling is
not warranted here, as Plaintiff has not alleged that he could not pursue his rights through the
grievance process or otherwise. In fact, Plaintiff alleges that he filed several grievances with the
Victoria County Jail (Doc. No. 26, pp. 5-6), leaving no doubt that he knew how to, and did,
exhaust his administrative remedies before filing suit. In sum, Plaintiff’s claims were not tolled
long enough through the grievance process or otherwise to make his complaint timely filed, and
those claims should be dismissed with prejudice.
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4. Other claims.
Plaintiff raises three other construed claims that, despite liberal reading, are non-viable.
a. Tim Cole Act.
Plaintiff alleges that his unlawful detention amounted to a violation of the Tim Cole Act.
(Doc. No. 26, pp. 3-4.) The Tim Cole Act “provides compensation for the time a person is
wrongfully imprisoned and for child support owed but not paid by the person, plus interest, while
imprisoned.” In re Phillips, 496 S.W.3d 769, 770 (Tex. 2016) (citing Tex. Civ. Prac. & Rem.
Code §§ 103.001-103.154). No cause of action is created here; rather, the Act is a tool by which
“[t]he comptroller shall determine . . . the amount of compensation owed” to those wrongfully
imprisoned. Id. at 770. Because the Tim Cole Act does not provide a standalone cause of action,
Plaintiff’s claim under that statute should be dismissed with prejudice.
b. Abuse of office and official capacity.
Plaintiff claims that the defendants are liable for abuse of their office and official capacity
under Texas law. (Doc. No. 26, p. 7.) Abuse of office and abuse of official capacity are crimes
under the Texas Penal Code, but neither of these Penal Code sections provides for a private right
of action. See Richardson v. Motteram, No. 3:17-CV-2746, 2018 WL 3406934, at *4 (N.D. Tex.
June 18, 2018), adopted, 2018 WL 3392202 (N.D. Tex. July 11, 2018). The “Texas Penal Code
does not create a private cause of action through which Plaintiffs may bring their abuse of
official capacity claim.” Williams v. Short, No. 1:23-CV-1069, 2023 WL 8248778, at *4 (W.D.
Tex. Oct. 3, 2023), adopted, 2023 WL 8242476 (W.D. Tex. Nov. 28, 2023) (quoting Elizondo v.
Nueces Cnty., Tex., No. CC-07-405, 2008 WL 383809, at *3 (S.D. Tex. Feb. 8, 2008) (Head,
C.J.) (in turn citing Aguilar v. Chastain, 923 S.W.2d 740, 745 (Tex. App.—Tyler 1996, pet.
denied)). Because there is no private cause of action through which Plaintiff can bring his abuse
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of office or abuse of official capacity claims, those claims lack an arguable basis in law, are
frivolous, and should be dismissed with prejudice.
c. Officer Wall’s denial of time credit.
Finally, liberally construed, Plaintiff alleges that, when he returned to the Victoria
County Jail around January 2024 for unauthorized use of a motor vehicle (an unrelated charge,
Plaintiff says – see Doc. No. 26-2, p. 5), Officer Wall, who allegedly was responsible for
maintaining the jail’s time records and granting time credit, refused to grant Plaintiff time credit
for the approximately three months he had spent at the jail in 2022. See Doc. No. 26, pp. 5-6.
To the extent Plaintiff relies on this alleged event as the basis for any cause of action here, he
fails to state a viable claim. A request for credit for time served while a prisoner is still detained
is a request for early release, and is not a cognizable claim under § 1983; rather, such a claim
sounds in habeas. See Daniels v. Collier, Civ. No. H-07-0568, 2007 WL 737494, at *1 (Lake, J.)
(citing Cook v. Texas Dep’t of Crim. Just. Transitional Planning Dep’t, 37 F.3d 166, 168 (5th
Cir. 1994)). In the setting of this case, Plaintiff alleges a subsequent denial of credit for time
served, but his request to Officer Wall sought to have time served in relation to an earlier offense
applied to detention for a later, unrelated offense. Even with liberal construction, Plaintiff posits
no constitutional violation stemming from any failure to grant, in a later case for a different
offense, credit for time served in a previous unrelated case.
This case is unlike Hicks v. LeBlanc. Hicks stated that the Fourteenth Amendment “is
violated where a prisoner remains incarcerated after the legal authority to hold him has expired.”
832 F. App’x 836, 840 (5th Cir. 2020) (citing Douthit v. Jones, 619 F.2d 527, 532 (5th Cir.
1980)). But that case involved a situation where a prison employee failed to credit the plaintiff
for time served in the same criminal case for which the plaintiff was incarcerated, and the
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criminal court in that case had already ordered the granting of such credit. Id. Here, by contrast,
Plaintiff does not allege that he was detained beyond the conclusion of his 2022 charges for
failure to identify and possession of a controlled substance, or that any court ordered the granting
of credit. As he alleges, he was released from custody once he was granted a personal
recognizance bond and that the charges were then dismissed. See Doc. No. 26, p. 4.8
G. Leave to amend?
The undersigned is recommending dismissal of Plaintiff’s claims. “When the dismissal
of a pro se complaint is appropriate, it should generally be done without prejudice in order to
allow the plaintiff an opportunity to file an amended complaint.” Rodriguez v. United States, 66
F.3d 95, 97 (5th Cir. 1995). But leave to amend need not be granted if amendment would be
futile. For example, leave to amend is not required where the amended claim would be barred by
limitations. E.g., Foman v. Davis, 371 U.S. 178, 182 (1962) (futility of amendment is adequate
justification to refuse to grant leave to amend); Vela v. Compton, No. 24-40302, 2024 WL
4891786, at *4 (5th Cir. Nov. 26, 2024) (unpublished) (citing Whitaker v. McDonald, No. 20-
40569, 2022 WL 68972, at *2 (5th Cir. Jan. 6, 2022) (unpublished) (no abuse of discretion in
denying leave to amend where complaint would be futile because of expired statute of
limitations). Here, granting Plaintiff leave to amend would be futile because the statutes of
limitations on his claims have run, even taking into account any tolling. And amendment would
not remedy any of the issues discussed above with regard to Plaintiff’s claims under the Tim
8 Plaintiff insists that his 2022 detention should never have happened at all, because he was innocent and was never
indicted for the 2022 charges. E.g., Doc. No. 26, p. 4. That allegation is conclusory, and Plaintiff himself alleges
that the state magistrate bound him over and set a bond. See id. at 3. This allegation indicates that Plaintiff was held
pursuant to lawful authority, even though he disagreed with that decision.
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Cole Act, for abuse of office or authority, and for Officer Wall’s refusal to grant subsequent time
credit. The district court therefore should not grant leave to amend.
H. Recommendation.
All of Plaintiff’s claims are barred by the applicable statutes of limitations or are
otherwise non-viable.9 Accordingly, the district court should DISMISS Plaintiff’s lawsuit with
prejudice.
I. Notice.
The Clerk will file this Memorandum and Recommendation and transmit a copy to each
party or counsel. Within 14 days after being served with a copy of the Memorandum and
Recommendation, a party may file with the Clerk and serve on the United States Magistrate
Judge and all parties, written objections, pursuant to Fed. R. Civ. P. 72(b), 28 U.S.C. § 636(b)(1),
General Order No. 2002-13, United States District Court for the Southern District of Texas.
A failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within 14 days after being
served with a copy shall bar that party, except upon grounds of plain error, from attacking on
9 Plaintiff makes no specific factual allegations of violations by Jane Doe 1 (the medical provider), John Doe 4 (the
jail’s duty sergeant), ADA Harvey, the Elected DA, or the State District Court Judge. The district court should
dismiss Plaintiff’s lawsuit against those defendants for that reason, in addition to the reasons discussed above in the
main text.
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appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District
Court. See Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
SIGNED on March 16, 2026.
_____________________________
MITCHEL NEUROCK
United States Magistrate Judge
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