     Case: 15-40010      Document: 00513378533         Page: 1    Date Filed: 02/12/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40010
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 12, 2016
ERIC HEILMAN,
                                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CITY OF BEAUMONT; BEAUMONT CHIEF OF POLICE,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:14-CV-264


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Eric Heilman appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 claims against defendants, the City of Beaumont and the Beaumont
Chief of Police. For the following reasons, we AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                              I. BACKGROUND
      The following facts are consistent with Heilman’s second amended
complaint. Heilman was a police officer in the Beaumont Police Department.
On October 13, 2008, Heilman and his partner arrested a suspect based on
evidence provided by a confidential informant. Heilman did not disclose the
confidential informant at the time of the arrest or in his testimony to a grand
jury because the policy of the Department was to only disclose a confidential
informant if the informant was involved in the arrest. Despite this policy, Tom
Maness, the District Attorney for Jefferson County—encompassing the City of
Beaumont—pursued a charge of perjury against Heilman based on his failure
to disclose the informant. Shane Phelps, an Assistant District Attorney, misled
Heilman into pleading guilty to tampering with a government record, a
misdemeanor. The plea agreement included a waiver of the relevant statute
of limitations. Heilman was sentenced to six months deferred adjudication.
He resigned from the Department on January 11, 2011.
      After being notified that the statute of limitations could not be waived in
his plea agreement, Heilman filed a petition for a writ of habeas corpus. The
trial court granted relief and dismissed the charges.          The government
appealed, and the Court of Appeals of Texas, Ninth District, affirmed the grant
of relief. The government again appealed to the Texas Court of Criminal
Appeals. The Texas Court of Criminal Appeals reversed the lower court’s
holding.
      Heilman then filed a complaint in the Eastern District of Texas alleging
numerous constitutional violations under 42 U.S.C. § 1983 against Maness,
Phelps, Jefferson County, the City of Beaumont, and the Beaumont Chief of
Police. Heilman alleged that the defendants engaged in malicious prosecution,
infringement of his protected speech by forcing him to plead guilty, retaliation
by forcing him to resign because of his protected speech, and deprivation of his
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Fourth and Fourteenth Amendment rights. Following a motion to dismiss
Heilman’s second amended complaint, the district court dismissed Heilman’s
claims against Maness, Jefferson County, the Beaumont Chief of Police, and
the City of Beaumont because, inter alia, the claims were barred by the
relevant statute of limitations. On appeal, Heilman challenges the dismissal
as to his claims against the City of Beaumont and the Beaumont Chief of
Police.   Finding that the statute of limitations bars Heilman’s remaining
claims, we AFFIRM the district court’s dismissal.
                          II. STANDARD OF REVIEW
      We review the dismissal of a complaint under Rule 12(b)(6) de novo.
Spiller v. City of Texas City, Police Dep’t, 130 F.3d 162, 164 (5th Cir. 1997). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The plaintiff must allege
facts that suggest liability and are more than consistent with unlawful
conduct. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007). “A motion to
dismiss may be granted on a statute of limitations defense where it is evident
from the pleadings that the action is time-barred, and the pleadings fail to
raise some basis for tolling.” Taylor v. Bailey Tool Mfg. Co., 744 F.3d 944, 946
(5th Cir. 2014).
                                III. DISCUSSION
      Section 1983 does not prescribe a statute of limitations. Instead, “[t]he
statute of limitations for a suit brought under § 1983 is determined by the
general statute of limitations governing personal injuries in the forum state.”
Piotrowski v. City of Hous., 237 F.3d 567, 576 (5th Cir. 2001). Texas has a two
year statute of limitations for personal injury claims. Tex. Civ. Prac. & Rem.
Code § 16.003(a); Piotrowski, 237 F.3d at 576. Under our law, the limitations
period begins to run when the plaintiff “knows or has reason to know of the
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injury which is the basis of the action.” Burrell v. Newsome, 883 F.2d 416, 418
(5th Cir. 1989) (citations omitted). The plaintiff must know of the injury and
the causal connection between the defendant and the injury. Piotrowski, 237
F.3d at 576. Heilman filed his complaint on March 4, 2014. To survive the
motion to dismiss, Heilman must have sufficiently pleaded facts that suggested
liability for injuries that he did not know of until after March 4, 2012.
      In his second amended complaint, Heilman alleged that the City of
Beaumont and the Beaumont Chief of Police adversely acted against him by
forcing him to resign and refusing to honor their promise to rehire him.
Heilman contended that these acts were in response to his protected speech—
not disclosing the confidential informant, arguing that such nondisclosure was
the policy of the Department, and challenging the validity of his guilty plea.
In addition, Heilman alleged that the City “has a pattern and practice of
wrongfully punishing Police Officers who follow orders or policies or practices
which ‘embarrass’ the City’s administration.”
      To establish a retaliation claim under § 1983, Heilman, a public
employee, must satisfy the following elements: “(1) the plaintiff must suffer an
adverse employment decision; (2) the plaintiff’s speech must involve a matter
of public concern; (3) the plaintiff’s interest in commenting on matters of public
concern must outweigh the defendant’s interest in promoting efficiency; and
(4) the plaintiff’s speech must have motivated the defendant’s actions.” Finch
v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 563 (5th Cir. 2003). Discharges
and refusals to hire are considered adverse employment actions. Sharp v. City
of Houston, 164 F.3d 923, 932 (5th Cir. 1999).
      For his retaliation claim to fall within the statute of limitations, Heilman
must have pleaded that the adverse actions in response to his protected speech
occurred after March 4, 2012. Even if we took his allegations of protected
speech to be more than conclusory and of public interest, the only adverse
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                                      No. 15-40010
action that Heilman sufficiently pleaded is that the City and the Chief of Police
forced him to resign. This injury occurred on January 11, 2011. Heilman also
alleged that the City promised to reinstate him and did not do so. Heilman
pleaded that the City “forced Chief of Police Coffin to renege on promises to
Heilman about continued employment despite Maness’ claims” and “promised
to reinstate [him] through its current Chief of Police and City Manager, and
then refused to perform as recently as 2014.”                 In his second amended
complaint, Heilman acknowledged that Chief of Police Coffin resigned in 2011;
therefore, any failure to hire by Coffin occurred well before March 4, 2012.
Heilman’s allegations that the current chief of police also refused to reinstate
him as recently as 2014 are conclusory. Heilman did not point to a discrete
instance where he actively pursued reinstatement and the City or the current
chief of police failed to hire him. 1 Heilman did not plead any facts sufficient to
allege that the City adversely acted against him after 2011. See Iqbal, 556
U.S. at 678.
       Heilman’s final alleged injury is that the City withheld evidence that
would have shown that he was acting in accordance with the policy of the
Department when he did not disclose the confidential informant.                      Even
ignoring Heiman’s internal inconsistency—Heilman also pleaded that Coffin
told Maness that Heilman was following Department policies—this alleged
injury is also time barred. Heilman knew or should have known of this injury
during his prosecution that resulted in his guilty plea on December 22, 2010.
The existence and nature of the Department’s policies were not at issue in
Heilman’s subsequent habeas petitions. Because Heilman failed to sufficiently



       1Heilman instead inconsistently pleaded that the City promised to reinstate him, and
that the current chief of police, Jimmy Singletary, repeatedly insisted that he would rehire
him “but for the City.” Heilman did not reference paragraphs sixty and sixty-one of his
second amended complaint, or the facts contained therein, in his brief to this court.
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                                  No. 15-40010
plead facts suggesting that the City is likely liable for injuries that occurred
within Texas’s two year statute of limitations, each of his claims is time barred.
                              IV. CONCLUSION
      Heilman did not allege any facts that would suggest that his § 1983
claims against the City of Beaumont and the Beaumont Chief of Police are not
barred by the applicable statute of limitations. We AFFIRM the district court’s
dismissal of Heilman’s claims.




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