     Case: 16-10359      Document: 00514144939         Page: 1    Date Filed: 09/06/2017




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

                                                                                   FILED
                                    No. 16-10359                           September 6, 2017
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
LUIS JARAMILLO, also known as Luis Alberto Jaramillo, also known as Luis
Alberto Sifuentiz, also known as Luis Alberto Velasquez,

                                                 Plaintiff-Appellant

v.

ROSS RENNER, Amarillo Police Department; JOHNNY BERMEA, Amarillo
Police Department; ROBERT WOODARD, Amarillo Police Department,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:15-CV-118


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       Luis Jaramillo, Texas prisoner # 2003081, appeals the dismissal of his
42 U.S.C. § 1983 action for failure to state a claim upon which relief could be
granted.    He alleged that the defendants violated his Fourth Amendment
rights by illegally detaining, searching, and arresting him for possession of a
controlled substance. He also asserted a claim of malicious prosecution.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-10359     Document: 00514144939     Page: 2   Date Filed: 09/06/2017


                                  No. 16-10359

      First, the district court did not err in finding that his claims of false
arrest and illegal search and seizure were time barred. On the date of the
search and seizure, that is, May 5, 2008, there was no “extant conviction” but
merely an “anticipated future conviction”; consequently, the statute of
limitations began to run for those claims on that date. Wallace v. Kato, 549
U.S. 384, 393 (2007). As for his claim of false arrest, the limitation period
began to run when he was detained pursuant to legal process, that is, no later
than August 26, 2008. See Wallace, 549 U.S. at 388, 397. His § 1983 complaint,
filed no earlier than April 7, 2015, was thus untimely as to his claims of false
arrest and illegal search and seizure.      See TEX. CIV. PRAC. & REM. CODE
§ 16.003(a); see also Pete v. Metcalfe, 8 F.3d 214, 217 (5th Cir. 1993) (borrowing
two-year statute of limitations period from Texas law for § 1983 case).
      Jaramillo contends that he is nevertheless entitled to tolling under state
law for the period during which he challenged his conviction. We need not
decide this question because, even with the benefit of that tolling, his claims
would still be untimely. Jaramillo was convicted in March 2009, and the
conviction was set aside in August 2013. At least 27 months elapsed before he
filed suit: seven months expired from the time he was detained pursuant to
legal process until he was convicted, and another 20 months expired after the
conviction was set aside but before he filed suit.
      Second, the district court did not err in its determination that Jaramillo’s
malicious prosecution claim failed as a matter of law.         See Castellano v.
Fragozo, 352 F.3d 939, 942 (5th Cir. 2003) (en banc).
      Accordingly, the judgment of the district court is AFFIRMED.




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