     Case: 09-11218 Document: 00511282294 Page: 1 Date Filed: 11/02/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          November 2, 2010

                                       No. 09-11218                         Lyle W. Cayce
                                                                                 Clerk

BILLY REESE McMILLAN, JR.,

                                                   Plaintiff-Appellant
v.

DEPUTY PATRICK RICHMOND, (of KCSO); NATALIE JEAN WILLIAMS

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No: 3:09-CV-1938


Before KING, GARWOOD and DAVIS, Circuit Judges.
PER CURIAM:*
        The district court dismissed pro se plaintiff Billy McMillan's 43 U.S.C. §
1983 lawsuit as frivolous under 28 U.S.C. § 1915(e)(2)(B), because it was
time-barred. In this appeal, McMillan challenges that order, arguing that the
district court should have permitted him to proceed with a malicious prosecution
action which was not time-barred. We affirm in part and vacate and remand in
part.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-11218 Document: 00511282294 Page: 2 Date Filed: 11/02/2010



                                 No. 09-11218

                                       I.
      McMillan's § 1983 action is based on events that occurred from October 2
to October 17, 2007. According to the allegations of McMillan's complaint, on
October 2 and 3, McMillan and defendant Natalie Williams, who lived together,
became embroiled in an argument. Early on October 3, McMillan entered the
house to retrieve his tools. Williams called 911, hung up, and then reported an
intruder when the 911 operator returned the call.
      Defendant Deputy Patrick Richmond and other officers responded on
October 3. McMillan informed Richmond and the officers that he resided in the
home. He explained where they would find his tools, that he had text messages
between himself and Williams, and that he had a key. Richmond took the key,
spoke with Williams, and then proceeded to tightly cuff McMillan and arrest him
for burglary with intent to commit an aggravated assault with a deadly weapon.
Williams went to the jail later that morning and gave an affidavit retracting her
“false allegations” against McMillan. However, McMillan was kept in jail and
bail was set later on October 3 by a magistrate on the basis of Richmond's
probable cause affidavit, which used Williams's version of events. It was not
until October 15, 2007, that McMillan was able to post bail and he was released
from custody. The charges were dropped about two days later.
      McMillan filed a § 1983 suit against Williams and Richmond on October
14, 2009. In his complaint, under the “Causes of Action” section, McMillan
alleged:
      Impairment of Constitutional Rights Under Color of State
      Law pursuant to 42 U.S.C. § 1983: Defendants D EP. R ICHMOND
      and W ILLIAMS together violated Plaintiff M CM ILLAN'S civil rights
      protected by the F OURTH (unreasonable SEIZURE for 13 days) &
      F OURTEENTH (D UE P ROCESS & E QUAL P ROTECTION) A MENDMENTS to
      the U.S. C ONSTITUTION, under color of state law.




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                                  No. 09-11218

(emphasis in original). After setting forth the facts surrounding his arrest,
McMillan alleged that on the same morning, after the arrest, Williams came to
the jail to "correct" her earlier allegations, but bail was set at $50,000.
      The magistrate judge issued a report and recommendation recommending
that McMillan's complaint for false imprisonment be dismissed as time barred
under the Texas two-year statute of limitations that applies to § 1983 actions.
The magistrate judge calculated the prescriptive period based on an October 3,
2007 accrual date because McMillan's bail was set on that date. The magistrate
judge observed that the false imprisonment ended when bail was fixed.
McMillan filed his Verified Objections to the Magistrate Judge's Findings,
Conclusions, and Recommendation asserting that his § 1983 claim was primarily
based on malicious prosecution. McMillan argued that the accrual date for his
malicious prosecution action was the date the charges were dismissed (on or
about October 17) so that his suit was timely filed within the two-year statute
of limitations.   The district judge overruled the objections, accepted the
magistrate judge's findings, and dismissed McMillan's complaint with prejudice
under § 1915(e)(2)(B). McMillan appeals.
                                        II.
      McMillan argues that the district court erred in interpreting his complaint
narrowly as only stating a false imprisonment claim under § 1983. McMillan
asserts that his complaint was broad enough to alert the court that he also had
a non time-barred malicious prosecution § 1983 claim.
      In his objections to the magistrate's findings and recommendation,
McMillan made it clear that he wished to pursue a malicious prosecution claim
for his detention after the bail hearing.
      A pro se IFP complaint may be dismissed as frivolous if it lacks an
arguable basis in law or fact. Macias v. Raul A. (Unknown), Badge No. 153, 23
F.3d 94, 97 (5th Cir. 1994); see also § 1915(e)(2)(B)(i). "A complaint lacks an

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                                  No. 09-11218

arguable basis in law if it is based on an indisputably meritless legal theory,
such as if the complaint alleges violation of a legal interest which clearly does
not exist." Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009) (internal citation
and quotation omitted). A complaint lacks an arguable basis in fact when "the
facts alleged are fantastic or delusional scenarios or the legal theory upon which
a complaint relies is indisputably meritless." Id. (internal quotation marks
omitted).
      However, a pro se complaint should not be dismissed without providing the
plaintiff an opportunity to amend, unless it is obvious that the plaintiff has pled
his best case; where that does not appear, remand is appropriate. See, e.g.,
Schultea v. Wood, 27 F.3d 1112, 1118 (5th Cir. 1994), modified on other grounds
on reh'g en banc, 47 F.3d 1427 (5th Cir. 1995). Although McMillan complained
of detention after his bail hearing, he did not flesh out his malicious prosecution
claim. McMillan therefore failed to clearly allege a § 1983 claim based on
malicious prosecution. He alleged enough, however, that he should be given an
opportunity to amend and plead his best case.
                                CONCLUSION
      Accordingly, we AFFIRM the dismissal of plaintiff’s § 1983 claim based on
false imprisonment and REMAND this case to the district court to permit the
plaintiff to amend his complaint to state his best § 1983 claim based on malicious
prosecution and for further proceedings consistent with this opinion.
      AFFIRMED in part and VACATED and REMANDED in part.




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