     Case: 10-20145 Document: 00511421188 Page: 1 Date Filed: 03/23/2011




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

                                                 FILED
                                                                           March 23, 2011
                                     No. 10-20145
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

WILLIE EDWARD DAVIS,

                                                   Plaintiff-Appellant

v.

JOHN POLLOCK, Investigator; FRED KINDELL; KENNY ELLIOT,
Investigator; JIM MANN, Chief Investigator; CHRIS KIRK, Sheriff; FRANK
MALINAK, Texas Ranger; BILL TURNER, District Attorney,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CV-1911


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
       Willie Edward Davis, Texas prisoner # 1422283, appeals the district
court’s summary judgment dismissal of his 42 U.S.C. § 1983 complaint as time
barred. Davis filed the complaint after the state court dismissed an indictment
against him for evidence tampering.               He argues that the district court’s
dismissal of his § 1983 complaint as time barred was erroneous because he is



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20145 Document: 00511421188 Page: 2 Date Filed: 03/23/2011

                                   No. 10-20145

entitled to tolling of the limitations period under the Texas theory of continuing
violations. Alternatively, he argues that he is entitled to equitable tolling.
      This court reviews the grant of a motion for summary judgment de novo.
Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009).
Summary judgment is appropriate if the records discloses “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” F ED. R. C IV. P. 56(a) (2010).
      Davis’ § 1983 complaint alleged the defendants conspired to violate his
substantive due process rights by intentionally withholding information and
fabricating evidence to procure his indictment in Brazos County, Texas, for
events that happened in Harris County, Texas. Davis’ substantive due process
claims under the Fourteenth Amendment are based on alleged pretrial
deprivations of his constitutional rights. Such claims should be brought under
the Fourth Amendment. Albright v. Oliver, 510 U.S. 266 (1994).
      Davis concedes that he does not have a viable claim of malicious
prosecution and that his claims for false arrest/imprisonment are time barred.
He alleges that the dismissal of the evidence tampering indictment constituted
the last over act in the defendants’ conspiracy to prevent him from discovering
the violation of his rights. He further alleges that the stated reason for the
dismissal, his conviction of capital murder in Case No. 06-01284-CRF-85, was
false or misleading. As such, he argues that the limitations period should be
tolled until the date of the dismissal of the indictment.     Davis’ allegations
regarding the motion to dismiss are speculative and belied by the fact that he is
actually imprisoned as a result of the aforementioned conviction.
      Davis is likewise not entitled to equitable tolling. “Equitable tolling is a
rare remedy to be applied in unusual circumstances, not a cure-all for an
entirely common state of affairs.” Wallace, 549 U.S. at 396. A person seeking
the benefit of equitable tolling “must show (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way

                                         2
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                               No. 10-20145

and prevented timely filing.” Lawrence v. Florida, 549 U.S. 327, 336 (2007)
(assuming without deciding that the federal habeas limitations period may be
equitably tolled). Davis has not made such a showing.
     AFFIRMED.




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