      Case: 19-20513          Document: 00515367823         Page: 1   Date Filed: 04/01/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                          No. 19-20513                          April 1, 2020
                                        Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
In the Matter of: Herman E. Hoffman

                        Debtor

HERMAN E. HOFFMAN, JR.

                        Appellant

v.

HOUSTON SOCIETY FOR THE PREVENTION OF CRUELTY TO
ANIMALS

                         Appellee

---------------------------------------------------------

Consolidated with: 19-20515

HERMAN HOFFMAN; KATHLEEN HOFFMAN,

                 Plaintiffs - Appellants

v.

GORDON WELCH, In his individual capacity; DEBORAH MICHIELSON, In
her individual capacity; J. D. LAMBRIGHT; STUART HUGHES; RONALD
CHIN; WAYNE MACK; MICHAEL SEILER; MONTGOMERY COUNTY,
TEXAS; HOUSTON SOCIETY FOR THE PREVENTION OF CRUELTY TO
ANIMALS; BRETT LIGON,

                 Defendants - Appellees
    Case: 19-20513      Document: 00515367823   Page: 2   Date Filed: 04/01/2020



                                No. 19-20513 c/w
                                 No. 19-20515


                Appeals from the United States District Court
                     for the Southern District of Texas
                           USDC No. 4:17-CV-787
                           USDC No. 4:17-CV-2332


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:
      Plaintiffs-Appellants Herman and Kathleen Hoffman challenge the
district court’s dismissal of their suit against the Houston Society for the
Prevention of Cruelty to Animals (HSPCA) and Texas county and state officials
for unlawful search and seizure under 42 U.S.C. § 1983. We AFFIRM.
      The Hoffmans owned 211 horses, many of which had been starved and
mistreated. Leslie Maybin worked for the Hoffmans from 2010 to 2014 and was
owed years of wages. When Maybin returned to work for the Hoffmans on June
22, 2015, the Hoffmans presented him with a bill of sale for ten horses, which
Maybin explained was payment for wages owed. The county seized the
remaining horses two days later, under an ordinance allowing for the seizure
of mistreated horses.
      The Justice of the Peace Court, after finding that the horses had been
starved and mistreated, then transferred title in the horses to the HSPCA. The
County Court at Law affirmed this judgment. The U.S. Supreme Court denied
certiorari. Hoffman v. Texas, 136 S. Ct. 899 (2016) (mem.).
      On May 19, 2016, Herman Hoffman filed a voluntary petition under
Chapter 12 of the Bankruptcy Code. He also filed an adversary proceeding
against Maybin, the HSPCA, and the county and state officials who defended
the county’s actions in seizing the horses. The bankruptcy court dismissed
Hoffman’s adversary proceeding.

                                       2
    Case: 19-20513      Document: 00515367823       Page: 3    Date Filed: 04/01/2020



                            No. 19-20513 c/w
                              No. 19-20515
      Hoffman next appealed the bankruptcy court’s judgment. In addition,
both Herman and Kathleen Hoffman sued the HSPCA and Texas county and
state officials in their individual and official capacities under § 1983. After
conducting a hearing, the district court dismissed Hoffman’s case against
Maybin on grounds that Hoffman had no right to the horses or their value. It
also dismissed both his adversary proceeding against the HSPCA and Texas
officials and the Hoffmans’ § 1983 suit. The court held, inter alia, that the
Hoffmans’ § 1983 claims were time-barred. The Hoffmans now appeal the
dismissal of their § 1983 claim. 1
      We review a district court’s grant of a motion to dismiss under Rule
12(b)(6) de novo. Budhathoki v. Nielsen, 898 F.3d 504, 507 (5th Cir. 2018).
Because § 1983 does not prescribe a statute of limitations, courts “must borrow
the relevant state’s statute of limitations for personal injury actions.” Redburn
v. City of Victoria, 898 F.3d 486, 496 (5th Cir. 2018). Texas has a two-year
statute of limitations for conversion of property claims. King-White v. Humble
Indep. Sch. Dist., 803 F.3d 754, 759 (5th Cir. 2015); TEX. CIV. PRAC. & REM.
CODE ANN. § 16.003. Federal law determines when a cause of action under
§ 1983 accrues. Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001).
We have held the limitations period begins to run once the plaintiff “becomes
aware that he has suffered an injury or has sufficient information to know that
he has been injured.” Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir.
1995) (citation omitted). Accordingly, the clock here began to run at the
moment Texas officials first seized the Hoffmans’ horses.




      1 The Hoffmans also appealed the dismissal of their adversary cases against the
HSPCA and the Texas county and state officials (No. 19-20513), and against Maybin. This
court has already affirmed the bankruptcy court’s findings in the latter. See Matter of
Hoffman, 795 F. App’x 291 (5th Cir. 2020) (per curiam). The former remains pending.
                                          3
     Case: 19-20513       Document: 00515367823          Page: 4     Date Filed: 04/01/2020



                               No. 19-20513 c/w
                                No. 19-20515
       In their complaint, the Hoffmans allege that the seizure occurred on
June 24, 2015. The Hoffmans thus had to bring their claim no later than June
26, 2017. 2 They first filed suit on July 31, 2017—over a month after the two-
year deadline had expired. The Hoffmans attempt to skirt around this by
arguing the seizure of their horses was only finalized when the justice court
divested them of ownership. Yet, even accepting this logic, the record makes
clear the court issued its order on July 8, 2015, and thus the Hoffmans’ claims
would still be time-barred. 3 As such, the district court correctly held that the
statute of limitations barred the Hoffmans’ claims against both the HSPCA
and Texas county and state officials.
       AFFIRMED.




       2 Texas law requires a claim be brought “no later than the same calendar day two
years following the accrual of the cause of action,” which would make June 24, 2017, the final
day the Hoffmans could file their claim. Price v. City of San Antonio, Tex., 431 F.3d 890, 893
(5th Cir. 2005). Because that date fell on a Saturday, however, the Hoffmans had until the
following Monday (June 26) to file. FED. R. CIV. P. 6(a)(3)(A).
       3 The Hoffmans argue that the continuing tort doctrine applies here because the

horses were never returned. The Supreme Court of Texas has “neither endorsed nor
addressed” this doctrine. See Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 592 (Tex. 2017)
(quoting Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 924 (Tex. 2013)).
In any event, the search and seizure here—a single incident—does not amount to a
continuing tort, one which would forever suspend the statute of limitations absent the horses’
return. See, e.g. Bloom v. Alvereze, 498 F. App’x 867, 874 (11th Cir. 2012) (holding the refusal
to return seized animals was not a continuous tort); Huerta v. United States, 384 F. App’x
326, 328 (5th Cir. 2010) (per curiam) (“the continued poverty . . . allege[d] does not convert
the one-time seizure into an ongoing tort”).
                                               4
