     Case: 16-41346      Document: 00514021361         Page: 1    Date Filed: 06/06/2017




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

                                      No. 16-41346
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 6, 2017

CHRISTIAN MORRILL,                                                         Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CITY OF DENTON, TEXAS; DONNIE DALE CARR; CHRISTOPHER
MURPHY; CRAIG FITZGERALD; RONNY CRAIN,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:14-CV-749


Before REAVLEY, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       According to Christian Morrill, in August 2012 he and his apartment
manager were arguing when defendant police officers arrived.                          After he
disclosed that he was armed with a knife, the officers instructed him to lay face
down on the ground with his hands behind his back, and, after he complied,
kicked and tased him “without provocation or justification of any sort.” “At no



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41346       Document: 00514021361         Page: 2    Date Filed: 06/06/2017



                                      No. 16-41346
point,” the complaint says, “did Plaintiff lash out, fight, or in any way attempt
to physically confront [the] officers.”
       The state charged Morrill with unlawful possession of a weapon and
resisting arrest. Morrill says he immediately agreed to plead guilty to the
weapons charge, but “steadfastly refused to even discuss [the] possibility of
agreeing . . . that he in any way, shape, or form resisted arrest.” In March
2014, pursuant to a plea bargain, Morrill pleaded nolo contendre to the
weapons charge and the state dismissed the resisting arrest charge.
       About eight months later, on November 19, Morrill filed this civil rights
case, alleging the officers used excessive force during the August 2012 incident.
Finding the two-year statute of limitations for such a claim had run, the
district court dismissed the excessive force claim against all Defendants. 1
       The statute of limitations for a section 1983 claim is determined by the
forum state’s limitations period for personal injury torts. Wallace v. Kato, 549,
U.S. 384, 387 (2007). In Texas that is two years from the date the cause of
action accrues. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a); Schaefer v. Gulf
Coast Regional Blood Ctr., 10 F.3d 327, 331 (5th Cir. 1994). So if Morrill’s
claim accrued the day the officers allegedly used excessive force, then the
statute of limitations expired in August 2014, months before he filed his
complaint.
       Morrill disputes the date of accrual. He argues his claim did not accrue
until the state dismissed a resisting arrest charge against him in March
2014. Federal law determines when a section 1983 cause of action accrues.
Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993); see also Manuel v. City of
Joliet, 137 S. Ct. 911, 920–21 (2017) (addressing the process for analyzing



       1Morrill also brought other claims that the district court dismissed. Morrill does not
challenge those dismissals.
                                             2
    Case: 16-41346     Document: 00514021361     Page: 3   Date Filed: 06/06/2017



                                  No. 16-41346
accrual of section 1983 claims: “In applying, selecting among, or adjusting
common-law approaches, courts must closely attend to the values and purposes
of the constitutional right at issue”). It does so when the plaintiff has “a
complete and present cause of action.” Wallace, 549 U.S. at 388; see Piotrowski
v. City of Houston, 51 F.3d 512, 516 (5th Cir. 1995) (stating that a cause of
action accrues when a plaintiff is aware, or should be aware, of the existence
of the injury and the connection between the injury and the defendants’
actions).
      An excessive force claim generally accrues on the date when the force is
inflicted. See Price v. City of San Antonio, 431 F.3d 890, 893–94 (5th Cir. 2005);
Armstrong v. Serpas, 670 F. App’x 851, 852 (5th Cir. 2016) (“[Plaintiff’s] claims
accrued [on] the date he alleges he was subjected to excessive force.”). Morrill
tries to distinguish his case because he was charged with resisting arrest. He
contends his cause of action did not accrue until the resisting arrest charge
was dismissed because: (1) the charge was “fraudulent concealment” that kept
him from knowing of his injury; (2) his excessive force claim is analogous to a
malicious prosecution claim, which does not accrue until the underlying
prosecution ends; and (3) although he knew he had been hurt when the
excessive force occurred, he did not know the force was excessive as a
constitutional matter until the charge was dismissed.
      We reject his attempts to avoid the normal accrual rule. First, the
resisting arrest charge did not conceal facts necessary to Morrill’s cause of
action. For fraudulent concealment to toll a limitations period, a plaintiff
cannot be aware of the critical facts underlying a cause of action and must
instead reasonably rely on a defendant’s deception that obscures those facts.
Mitchell v. U.S. Customs Serv., 24 F.3d 239, 239 (5th Cir. 1994). Even if
Defendants were deceptive, Morrill’s complaint does not allege facts showing
he reasonably relied on the resisting arrest charge to conclude that the officers
                                        3
    Case: 16-41346     Document: 00514021361      Page: 4   Date Filed: 06/06/2017



                                  No. 16-41346
did not use excessive force. Instead, his complaint alleges he knew the critical
facts all along: he did not resist arrest and complied with officer commands,
yet officers kicked and tased him “without provocation or justification.” It says
he immediately and at all times “steadfastly refused to even discuss [the]
possibility of agreeing . . . that he in any way, shape, or form resisted arrest.”
      Second, Morrill’s excessive force claim is not analogous to a malicious
prosecution claim. A malicious prosecution claim only accrues once the
criminal charges are dismissed because an element of that tort is the
termination of a criminal prosecution in the plaintiff’s favor. Castellano v.
Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (en banc); Aly v. City of Lake
Jackson, 453 F. App’x 538, 539 (5th Cir. 2011). Thus, no cause of action exists
until the prosecution is resolved.     The same is not true of a section 1983
excessive force claim, which can be brought whether or not the defendant is
prosecuted for resisting arrest. See Bush v. Strain, 513 F.3d 492, 499 (5th Cir.
2008). We have repeatedly held that a pending criminal charge does not delay
accrual of an excessive force claim arising out of an arrest for that charge. See,
e.g., Price, 431 F.3d at 894 n. 8 (pending charge for interfering with public
duties by interfering with an officer’s weapon did not keep excessive force claim
from accruing); Humphreys v. City of Ganado, 467 F. App’x 252, 255 (5th Cir.
2012) (plaintiff “became aware of the injuries upon which his claims for
excessive force, assault and battery, unreasonable search and seizure, and
false arrest [we]re based on the day that those injuries occurred,” not when
charges of attempted murder and aggravated assault with a deadly weapon
were dismissed due to insufficient evidence); Jones v. Pillow, 189 F. App’x 304,
306 (5th Cir. 2006) (excessive force claim accrued on the date of alleged force
and not when plaintiff was acquitted of domestic abuse charge).
      Morrill claims this case is different because resisting arrest is more
closely linked with the amount of force an officer may lawfully use than was
                                        4
     Case: 16-41346      Document: 00514021361         Page: 5    Date Filed: 06/06/2017



                                      No. 16-41346
true for the crimes in these prior cases. Determining whether force is excessive
does require consideration of whether a plaintiff was “actively resisting arrest.”
Graham v. Connor, 490 U.S. 386, 396 (1989). But we do not see why this makes
a difference. Even if Morrill’s excessive force claim would call into question a
conviction for resisting arrest, mere pending charges would not prevent the
claim from accruing. See Wallace, 549 U.S. at 388–93. 2 And, as discussed
above, Morrill was aware of the factual basis for his claim long before the state
dismissed the resisting arrest charge, and the existence of his claim, unlike the
existence of a malicious prosecution claim, “did not depend on the outcome of
the subsequent criminal proceedings.” Humphreys, 467 F. App’x at 255.
       Finally, Morrill argues that although he was aware of his personal injury
in August 2012, he had no actionable constitutional claim until the resisting
arrest charge was dismissed. He cites no caselaw for this proposition, and this
court has long held that a plaintiff need only know the facts underlying a cause
of action for accrual to begin, not that a claim is legally viable. See Piotrowski,
51 F.3d at 516; Conroy v. Rider, 575 F. App’x 509, 509 (5th Cir. 2014). Morrill’s
constitutional injury was complete on the day the alleged excessive force took
place. His section 1983 claim thus accrued in August 2012, more than two
years before he filed suit.
                                           ***
       The judgment is AFFIRMED.




       2 Morrill does not claim a Heck v. Humphrey, 512 U.S. 477 (1994), bar prevented his
claim from accruing, and cannot do so after Wallace, because his claim did not challenge the
validity of an existing conviction. Wallace, 549 U.S. at 393.
                                             5
