                                 MEMORANDUM OPINION
                                        No. 04-10-00565-CV

                                        Arturo Neri PRADO,
                                              Appellant

                                                  v.

                CITY OF FREDERICKSBURG POLICE DEPARTMENT, et al.,
                                    Appellees

                   From the 216th Judicial District Court, Gillespie County, Texas
                                      Trial Court No. 12117
                          Honorable N. Keith Williams, Judge Presiding

Opinion by:      Phylis J. Speedlin, Justice

Sitting:         Catherine Stone, Chief Justice
                 Phylis J. Speedlin, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: March 30, 2011

AFFIRMED

           Arturo Neri Prado appeals the summary judgment granted in favor of the City of

Fredericksburg Police Department, Officer Gordon Gipson, Gillespie County, Deputy Kevin W.

Carter, Deputy Clint Stewart, Deputy Robert M. Goodrich, Deputy Billy Jividen, and Deputy

Mike Colwell (collectively the “Defendants”) on his excessive force claim. We affirm the

judgment of the trial court.
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                          FACTUAL AND PROCEDURAL BACKGROUND

       Prado was arrested and charged with aggravated assault against a female in the City of

Fredericksburg on November 27, 2003. Ultimately convicted of the crime in 2007, Prado was

sentenced to 43 years of confinement. In July 2008, while imprisoned, Prado initiated a civil

lawsuit against the Defendants alleging that officers from both Gillespie County and the City of

Fredericksburg used excessive force when they physically assaulted him during his November

27, 2003 arrest after he was handcuffed.      In his first amended petition, Prado claims the

Defendants are liable to him under the Texas Tort Claims Act; the Texas Constitution, Article I,

§§ 9, 19, and 29; and the Fourth Amendment of the United States Constitution.             All the

Defendants filed a motion for summary judgment asserting that Prado’s claims were barred by

the two-year statute of limitations. The trial court granted final summary judgment in favor of

the Defendants based upon limitations. Prado now appeals.

                                     STANDARD OF REVIEW

       We review the grant of a traditional summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A defendant moving for summary judgment on

the affirmative defense of limitations has the burden to conclusively establish: (1) when the

cause of action accrued; and (2) there is no genuine issue of material fact about when the

plaintiff discovered or should have discovered the nature of his injury. KPMG Peat Marwick v.

Harris County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).             Once the defendant

establishes the action is barred by the applicable statute of limitations, the plaintiff must then

produce summary judgment proof raising a fact issue in avoidance of the statute of limitations.

Id.; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).




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                                                DISCUSSION

        The relevant facts in this lawsuit are not in dispute. Prado claims he was subjected to

excessive force during his arrest on November 27, 2003, causing him severe bodily injury. He

filed suit on July 7, 2008, over four years after the date of his alleged assault. The sole issue

before us is whether Prado’s claims are timely. In his first issue on appeal, Prado argues his

claims are not time-barred because they were initiated within two years of his 2007 criminal trial

during which, Prado claims, the defendant officers admitted using excessive force against him.

Prado maintains that, as a citizen of Mexico, he did not speak English at the time of his 2003

arrest and did not know his constitutional rights had been violated until his 2007 criminal trial.

        We construe Prado’s pleadings to assert claims under both 42 U.S.C. § 1983 and the

Texas Tort Claims Act. 1 See 42 U.S.C. § 1983 (2006); TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.021 (West 2011). With respect to Prado’s state law tort claim, the limitations period for

personal injuries is two years. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp.

2010). Section 16.003(a) specifically provides that a person must bring suit for personal injury

not later than two years after the day the cause of action accrues. Id. Under Texas law, a cause

of action generally accrues for purposes of section 16.003(a) when a wrongful act causes a legal

injury, regardless of when the plaintiff discovers the injury or if all resulting damages have been

incurred. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996); Zacharie v. U.S. Natural Res., Inc., 94

S.W.3d 748, 752 (Tex. App.—San Antonio 2002, no pet.). Accordingly, Prado’s personal injury

claim under the Texas Tort Claims Act, having been filed well after expiration of the two-year

period, is barred by limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a).



1
 We note that the Texas Tort Claims Act does not waive sovereign immunity for claims “arising out of assault,
battery, false imprisonment, or any other intentional tort.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2) (West
2011); Tex. Dept. of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001).

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       With respect to Prado’s federal claim for excessive force, there is no federal statute of

limitations period prescribed for civil rights actions brought under 42 U.S.C. § 1983; therefore,

we look to the applicable state law period for personal injury torts. City of Rancho Palos Verdes,

Cal. v. Abrams, 544 U.S. 113, 123 n.5 (2005) (citing Wilson v. Garcia, 471 U.S. 261, 275-76

(1985)); Price v. City of San Antonio, 431 F.3d 890, 892 (5th Cir. 2005). Accordingly, the

applicable limitations period for a 42 U.S.C. § 1983 suit in Texas is the same two-year

limitations period for personal injury claims provided in section 16.003(a) of the Texas Civil

Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a); Jackson v.

Johnson, 950 F.2d 263, 265 (5th Cir. 1992). However, although the Texas limitations statute

applies, federal law governs when a section 1983 claim accrues. Lavellee v. Listi, 611 F.2d

1129, 1130 (5th Cir. 1980). Under federal law, a cause of action accrues when the plaintiff

knows or has reason to know of the injury which is the basis of the action. Id. at 1131. The

limitations period for a section 1983 action therefore begins to run when the plaintiff is in

possession of the “critical facts that he has been hurt and who has inflicted the injury . . . .” Id.

       Here, Prado knew or had reason to know of the facts of his excessive force claim on the

night of his arrest on November 27, 2003. His pleadings contend he was “beaten while cuffed

and while being held by officers on each side of him,” resulting in cuts, abrasions, and his nose

being broken which required him to be taken by ambulance to the hospital for treatment. As

Prado was present when the alleged excessive force was used and while he was treated for the

resulting injuries at the hospital, he necessarily was aware of the facts that he was hurt and who

inflicted his injury. The fact that Prado did not speak English, and was not aware of his

constitutional rights, at the time of the alleged excessive force does not affect the accrual of his

cause of action. A plaintiff need not realize that a legal cause of action exists; a plaintiff need



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only know the facts that would support a claim. See id.; see also Harrison v. United States, 708

F.2d 1023, 1027 (5th Cir. 1983). Therefore, Prado’s cause of action under 42 U.S.C. § 1983

accrued when he was injured on November 27, 2003. See Price, 431 F.3d at 893. Given that

Prado’s suit was not filed until more than four years later, his section 1983 claim was barred by

limitations. See id. at 893-94. The trial court’s grant of summary judgment based on limitations

was proper.

         In his second issue, Prado argues that because he is a citizen of Mexico, he is entitled to

invoke the federal Alien Tort Statute (ATS), which he asserts extends the limitations period for

his excessive force claim to ten years. See 28 U.S.C. § 1350 (2006). 2 We disagree for several

reasons. Prado filed his action in state court, not federal court. The ATS is a jurisdictional

statute allowing federal courts to hear “a relatively modest set of actions alleging violations of

the law of nations.” Sosa v. Alvarez-Machain, 542 U.S. 692, 720 (2004). In Sosa, the Supreme

Court reviewed the history of the ATS and found that, when enacted in 1789, only three torts

were recognized under common law as being violations of the law of nations: “violation of safe

conducts, infringement of the rights of ambassadors, and piracy.” Id. at 715, 720 (citing 4 W.

BLACKSTONE, COMMENTARIES              ON THE    LAWS    OF    ENGLAND 68 (1769)). The Court’s majority

opinion summarized the ATS as a “jurisdictional statute creating no new causes of action,” but

“having been enacted on the understanding that the common law would provide a cause of action

for the modest number of international law violations with a potential for personal liability at the

time.” Sosa, 542 U.S. at 724.

         Here, Prado alleges no violation of international law. Furthermore, a majority of the

Court in Sosa refused to find that section 1350 encompasses a cause of action for arbitrary arrests


2
 Section 1350 reads: “The district courts shall have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of the United States.”

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and detentions under the status of a binding customary international norm, in part because it

would supplant actions under 42 U.S.C. § 1983 which already provide a damages remedy for

such conduct. Id. at 736-37 (rejecting Mexican national’s assertion that ATS governs claims of

abduction and transport to the United States to face prosecution). For the reasons stated, we

conclude the ATS does not apply to Prado’s excessive force claim. We overrule his second

issue.

         Based on the foregoing analysis, we overrule Prado’s issues on appeal and affirm the trial

court’s judgment.


                                                  Phylis J. Speedlin, Justice




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