     Case: 18-20468      Document: 00515089574         Page: 1    Date Filed: 08/23/2019




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

                                    No. 18-20468                             FILED
                                  Summary Calendar                     August 23, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
DENNIS C. DAVIS,

                                                 Plaintiff-Appellant

v.

FAYETTE COUNTY APPRAISAL DISTRICT; RICHARD MORING, Chief
Appraiser; LINDA WAGNER, Mineral Data Clerk; PERDUE BRANDON
FIELDER COLLINS & MOTT, L.L.P.; JOHN T. BANKS; A. DYLAN WOOD,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:16-CV-1112


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Dennis C. Davis, Texas prisoner # 1597434, appeals the dismissal of his
42 U.S.C. § 1983 complaint in which he alleged that the defendants committed
torts (e.g., intentional infliction of emotional distress) and violated the Texas
Debt Collections Practices Act, the Fair Debt Collection Practices Act, and the
Due Process Clause. He argued that the defendants engaged in improper debt


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 18-20468

collection practices by proceeding with a fraudulent lawsuit against him for
outstanding property and ad valorem taxes. The district court reasoned that
Davis’s claims were time barred and did not set forth grounds for relief and,
thus, granted the defendants’ motions to dismiss for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). We review the dismissal
de novo. See Groden v. City of Dallas, Tex., 826 F.3d 280, 283 (5th Cir. 2016);
Price v. City of San Antonio, Tex., 431 F.3d 890, 892 (5th Cir. 2005).
      Davis has not shown that the district court erred in concluding that his
claims were untimely and that his § 1983 complaint failed to state a claim. See
Price, 431 F.3d at 892; Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003).
The predicate for Davis’s causes of actions – and the incident that gave rise to
the purported injuries that are the grounds for his claims – was the filing and
prosecution of the tax lawsuit. His claims accrued when he was served with
the tax lawsuit in April 2012, or, at the latest, when the suit was mooted in
January 2013 by the execution of a release of judgment lien. See Wallace v.
Kato, 549 U.S. 384, 388 (2007); Moreno v. Sterling Drug. Inc., 787 S.W.2d 348,
351 (Tex. 1990). His § 1983 complaint, which was filed in April 2016, was not
timely under the applicable statutes of limitations. See Owens v. Okure, 488
U.S. 235, 249-50 (1989) (holding that, for § 1983 claims, federal courts use the
limitations period for personal-injury actions); 15 U.S.C. § 1692k(d); TEX. CIV.
PRAC. & REM. CODE § 16.003(a).
      Davis seeks to invoke the discovery rule, which provides that the statute
of limitations begins when the plaintiff discovered or should have discovered,
in the exercise of reasonable care and diligence, the nature of the injury. See
Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988); see also Wallace, 549 U.S.
at 394 (indicating that state law controls the tolling rules for § 1983 claims).
However, even if the discovery rule applied, Davis has not shown that the tax



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lawsuit did not alert him to the possible injury and the grounds for his causes
of action. Because there was no meaningful lag between the allegedly wrongful
conduct and Davis’s awareness of the resulting harm, use of the discovery rule
would not affect the timeliness of his claims. See Comput. Assocs. Int’l., Inc. v.
Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996); Arabian Shield Dev. Co. v. Hunt,
808 S.W.2d 577, 583, 585 (Tex. App. 1991).
      Additionally, Davis argues that the limitations periods should have been
tolled until he completed his appeal of the judgment in the tax lawsuit. He has
not established, however, that the availability of appellate procedures affected
when his causes of actions accrued. While Texas rules allow tolling if a plaintiff
is precluded from seeking legal remedies due to the pendency of another legal
action, see Holmes v. Tex. A&M Univ., 145 F.3d 681, 684-85 (5th Cir. 1998),
Davis has not established that the appeal was a predicate action for his § 1983
lawsuit, he had to finish his appeal before he could file a § 1983 action, tolling
was required to protect him from taking contradictory positions, or his § 1983
complaint was contingent on the outcome of the appeal. See Gillig v. Nike, Inc.,
602 F.3d 1354, 1358 (5th Cir. 2010); Rogers v. Ricane Enters., Inc., 930 S.W.2d
157, 167 (Tex. App. 1996).
      Davis also argues that the district court improperly refused to allow him
to amend his complaint after the defendants submitted responsive pleadings.
We review the denial of leave to amend for abuse of discretion. Foman v. Davis,
371 U.S. 178, 182 (1962).
      The record supports that the district court reasonably could have found
that the amendments – which sought to raise new legal theories and causes of
action based on the same factual predicate underlying the claims in his original
and first amended complaints – were dilatory and belatedly filed. See Foman,
371 U.S. at 182; Wright v. Allstate Ins. Co., 415 F.3d 384, 391 (5th Cir. 2005).



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Also, the district court could plausibly have found that Davis’s delay in offering
the amendments prejudiced the defendants and imposed unwarranted burdens
on the court. See Wright, 415 F.3d at 391. Further, because Davis only offered
conclusory allegations and legal conclusions in his proposed amendments, the
district court properly could have found that the amendments were futile. See
id.; Martin’s Herend Imports, Inc. v. Diamond & Gem Trading United States
of America Co., 195 F.3d 765, 770–71 (5th Cir. 1999).
      In light of the foregoing, the district court’s judgment is affirmed. Davis’s
motion for the appointment of counsel is denied because the present case does
not present the exceptional circumstances required for such an appointment.
See Ulmer v. Chancellor, 691 F.2d 209, 212–13 (5th Cir. 1982).
      The district court’s dismissal counts as a strike for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Davis is cautioned that if he accumulates three strikes, he will not be able to
proceed in forma pauperis in any civil action or appeal that is filed while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
      AFFIRMED; MOTION DENIED; SANCTION WARNING ISSUED.




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