                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                   F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   December 5, 2005
                        _____________________
                                                             Charles R. Fulbruge III
                               04-51213                              Clerk
                        _____________________

SCOTT PRICE,

                 Plaintiff - Appellant,
      v.

CITY OF SAN ANTONIO TEXAS; JOHN ANTHONY GARCIA, Individually and in
his Official Capacity; HAROLD RAINEY, Individually and in his
Official Capacity,

                 Defendants - Appellees.
                         ___________________

            Appeal from the United States District Court
      for the Western District of Texas, San Antonio Division

                         ___________________


Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:

      Appellant Scott Price appeals the district court’s dismissal

of his claims under 42 U.S.C. § 1983.1         For the reasons below, we

affirm.    We modify, however, the dismissal of Price’s false arrest

and   prosecution   claims   so   that   they    are   dismissed    without

prejudice.

                             I.   Background

      On October 31, 2001, Price was involved in an altercation with



      1
      Price also made claims under 42 U.S.C. § 1985 and under
state law that were dismissed below. Because his brief does not
address these claims, he has waived any objection to their
dismissal. See FED. R. APP. P. 28(a)(9)(A); Eugene v. Alief
Independent Sch. Dist, 65 F.3d 1299, 1303 n.1 (5th Cir. 1995).
an uninvited visitor to his apartment.     A neighbor contacted the

police, and Harold Rainey and John Garcia, both San Antonio police

officers, responded.    Price’s complaint alleges that, immediately

after Officers Rainey and Garcia arrived, they began to beat him

with their batons, spray him with pepper spray, and kick him in the

chest.   The complaint avers that Price had not provoked the

officers and posed no threat to them.    Price further alleges that

after neighbors called for an ambulance, the officers bound his

arms and legs with duct tape.    On the same date, Price was charged

with the felony offense of taking or attempting to take a weapon

from a police officer.       On April 19, 2002, that charge was

dismissed and refiled as the misdemeanor offense of interfering

with public duties.    The misdemeanor charge was still pending when

Price commenced this suit.

     On Monday, November 3, 2003, Price filed a complaint against

Officers Rainey and Garcia and the City of San Antonio, claiming,

inter alia, that Appellees violated section 1983.     Specifically,

Price claimed invasion of privacy, unreasonable search, use of

excessive force, false arrest, and “malicious prosecution.”2 Price


     2
      In Castellano v. Fragazo, we held that “‘malicious
prosecution’ standing alone is no violation of the United States
Constitution.” 352 F.3d 939, 942 (5th Cir. 2003) (en banc).
Castellano nevertheless recognized that the “initiation of
criminal charges without probable cause may set in force events
that run afoul of explicit constitutional protection . . . .”
Id. at 953–53. Price’s complaint and the court below used
“malicious prosecution” to describe claims that Price had arising
out of his prosecution. We decline to use that term of art

                                 -2-
alleged that the City of San Antonio sanctioned the officers’

actions by being “deliberately indifferent” to police training and

discipline.

     Appellees moved to dismiss Price’s claims, arguing that they

were barred by the statute of limitations.               The district court

referred the matter to a magistrate judge, who recommended that the

statute of limitations did not bar Price’s suit.              The magistrate

determined that the applicable statute of limitations did not

expire until November 1, 2003.              Since November 1st fell on a

Saturday, the magistrate thus recommended that Price’s Monday,

November 3rd complaint was timely filed.          See FED. R. CIV. P. 6(a).3

Additionally,      the   magistrate   advised   that    Price’s    prosecution

claims4 be dismissed without prejudice.            The report noted that

Price’s complaint did not allege that criminal proceedings had

terminated in his favor, as required to state a claim.

     On review of the report, the district court rejected the

magistrate’s recommendation that Price’s claims were timely filed,

holding that the statute of limitations had expired on October 31,

2003.     In reaching its conclusion, the court stated that it was

accepting    the   magistrate’s   interim     determination       that   all   of


because doing so “only invites confusion.”             Id. at 954.
     3
      Under Rule 6(a), when the last day of any time period
prescribed by statute falls on a Saturday, Sunday, or a legal
holiday, the period is extended “until the end of the next day
which is not one of those aforementioned days.”
     4
         See note 2, supra.

                                      -3-
Price’s causes of action had accrued on October 31, 2001, “as no

party objected to this finding.”      Price v. City of San Antonio, No.

SA-03-CA-1103-FB, slip op. at 3 (W.D. Tex. Sept. 22, 2004).         Price

claims on appeal that the district court erred in concluding that

his claims were time-barred both by miscalculating the limitations

period and in determining that his claims accrued on October 31,

2001.

                             II.   Discussion

     A.   Calculation of the Limitations Period

     “We review de novo a district court's conclusion that a claim

is time-barred.” Rashidi v. American President Lines, 96 F.3d 124,

126 (5th Cir. 1996). Price argues that the court miscalculated the

limitations   period   and   should   have   accepted   the   magistrate’s

recommendation that it expired, at the earliest, on November 3,

2003—the first business day following the same calendar day two

years after the incident that gave rise to the suit.          We disagree.

     The limitations period for a claim brought under section 1983

is determined by the general statute of limitations governing

personal injuries in the forum state.           Piotrowski v. City of

Houston, 237 F.3d 567, 576 (5th Cir. 2001).         There is no dispute

that the applicable statute provides that claims must be brought

“not later than two years after the day the cause of action

accrues.”   TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (Vernon 2005).   The

parties dispute, however, the precise method of calculating the


                                    -4-
two-year limitation.    To construe a Texas statute, we look to how

Texas’s highest court would resolve the issue.      See, e.g., C&H

Nationwide, Inc. v. Norwest Bank Texas NA, 208 F.3d 490, 495 (5th

Cir. 2000).

     In support of his claim that he is entitled to bring a claim

on the day after the same calendar day two years subsequent to the

incident, Price cites our decision in Gonzales v. Wyatt, 157 F.3d

1016 (5th Cir. 1998).      Discussing Texas’s two-year statute of

limitations as it applied to section 1983, the Gonzales Court

stated:

     The complaint alleges that Wyatt used excessive force on
     Gonzales on January 24, 1994 . . . . Limitations, if not
     tolled, generally continues to run until the suit is
     commenced by the filing of the plaintiff's complaint in
     the clerk’s office.     It is hence clear that unless
     Gonzales’ complaint can be said to have been filed on or
     before January 25, 1996, the claims asserted therein are
     barred by limitations.

Id. at 1020 (internal citations omitted). Gonzales’s discussion of

the specifics of calculating a limitations period under section

16.003 was dicta.      The plaintiff in Gonzales did not file suit

until March of 1996.      Id. at 1022.   Thus, the passage on which

Price relies was not necessary to the outcome of the case.

     Earlier Fifth Circuit cases conflict with Gonzales’s analysis.

See Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 549

(5th Cir. 1997) (holding that the earlier of two conflicting

decisions controls).      Addressing Texas’s section 16.003 in a



                                 -5-
section 1983 case, we stated in Henson v. Rogers:

     the limitations period began to run on September 1, 1987.
     Therefore, [the plaintiff] had only until September 1,
     1989 to file his complaint.

923 F.2d 51, 52 (5th Cir. 1991); see also Flores v. Cameron County,

92 F.3d 258, 272 (5th Cir. 1996).          As in Wyatt, the specific

calculation of the limitations period in Henson and Flores did not

determine the outcome.        We need not rely exclusively on these

hypothetical    discussions    because   Texas   courts   have   squarely

addressed the issue.

         Applying an earlier, now-repealed two-year personal injury

statute of limitations, the Texas Supreme Court held that “the

commencement of [the plaintiff’s] suit on January 2, 1970, was not

within the two year period” where her “right . . . to enforce her

claim” arose on January 1, 1968.     Kirkpatrick v. Hurst, 484 S.W.2d

587, 588 (Tex. 1972). Texas intermediate appellate courts applying

the current statute have uniformly held that a complaint filed the

day after the same calendar day two years after the action accrued

is one day too late.5   See Segura v. Home Depot USA, Inc., 2001 WL

387995, *4–6 (Tex. App.–San Antonio 2001, no pet.) (not designated

for publication); Medina v. Lopez-Roman, 49 S.W.3d 393, 397–98

     5
      In predicting how the Texas Supreme Court would rule on an
issue that it has not specifically addressed, “we defer to
intermediate state appellate court decisions unless convinced by
other persuasive data that the highest court of the state would
decide otherwise.” Herrmann Holdings Ltd. v. Lucent Technologies
Inc., 302 F.3d 552, 558 (5th Cir. 2002) (internal quotation marks
omitted).

                                   -6-
(Tex.    App.–Austin    2000,       pet.     denied);   Fisher    v.   Westmont

Hospitality, 935 S.W.2d 222, 224 (Tex. App.–Houston [14th Dist.]

1996, no writ); Hargraves v. Armco Foods, Inc. 894 S.W.2d 546,

546–47 (Tex. App.–Austin 1995, no writ) (per curiam). Accordingly,

we conclude that the Texas Supreme Court would hold that section

16.003 requires a claim to be brought no later than the same

calendar day two years following the accrual of the cause of

action.6

     This conclusion is fatal to Price’s invasion of privacy,

unreasonable search, and excessive force claims.                 Ordinarily, a

cause of action under section 1983 accrues when the plaintiff

“knows or has reason to know of the injury which is the basis of

the action.”     Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir.

1992).     Price does not challenge the determination below that he

knew or     should   have   known    about    the   injuries   underlying   his

invasion of privacy, unreasonable search, and excessive force

claims on October 31, 2001, when the incident occurred.7                    His

November 3, 2003 complaint was filed more than two years after

these claims accrued, and therefore the district court correctly

concluded that they were barred by the statute of limitations.



     6
      The relevant day, October 31, 2003, was a Friday.                Thus,
Rule 6(a) is not applicable here.
     7
      Price argues, incorrectly, that the general accrual rule
does not apply to these claims. See note 8 and accompanying
text, infra.

                                       -7-
      B.   Accrual of Price’s False Arrest and Prosecution Claims

      The district court dismissed all of Price’s causes of action

as barred by the statute of limitations, including his false arrest

and prosecution claims.         Price argues that the court erroneously

used October 31, 2001 as the accrual date for those claims.                  The

parties vigorously dispute the appropriate standard of review, with

Appellees contending that we should review only for plain error

because Price did not object to the magistrate’s report.                     See

Douglass v. United States Automobile Association, 79 F.3d 1415,

1428–29 (5th Cir. 1996).           Price points out, however, that he

ultimately prevailed on the statute of limitations question before

the magistrate and therefore had no reason to object.

      We need not resolve this dispute.          Whether our review is de

novo or for plain error, we must still modify the district court’s

order insofar as it dismisses Price’s false arrest and prosecution

claims with prejudice.         Under plain error review, we will correct

errors that are plain, affect substantial rights, and seriously

affect the fairness, integrity or public reputation of judicial

proceedings.        See id. at 1424.

      First,    the    district   court’s    ruling   that   the   statute   of

limitations barred even Price’s false arrest and prosecution claims

was error that is plain.          An error is plain when it is clear or

obvious.      Id.    We have held that the statute of limitations does

not   begin    running    on   section   1983   prosecution    claims   until


                                       -8-
proceedings have terminated in the plaintiff’s favor.        See Eugene

v. Alief Independent Sch. Dist., 65 F.3d 1299, 1306 (5th Cir.

1995); see also Castellano v. Fragozo, 353 F.3d 939, 959 (5th Cir.

2003)    (en   banc)   (reaffirming    the     rule   that   claims   of

“constitutional deprivations suffered in a state court prosecution”

do not accrue until “criminal proceeding[s] terminate in [the

plaintiff’s] favor”).    Additionally, we have held that when false

arrest claims are brought in conjunction with such claims, the

false arrest claims are “essentially part” of the prosecution

claims and therefore accrue at the same time.           See Brandley v.

Keeshan, 64 F.3d 196, 199 (5th Cir. 1995).8           At the time Price

filed his complaint, criminal proceedings stemming from the October

31, 2001 incident were still pending against him.        No false arrest

or prosecution claim had accrued.            Accordingly, the district

court’s dismissal of such claims as barred by the statute of




     8
      We reject Price’s suggestion that Brandley extends to all
of his section 1983 claims. In Brandley, the plaintiff had
brought assault, battery, defamation, and invasion of privacy
claims in addition to false arrest/false imprisonment claims. 64
F.3d at 198. Yet the Brandley court reversed only the district
court’s dismissal of his false arrest/false imprisonment claims
as time-barred. Id. at 199. Unlike Price’s false arrest claims,
his excessive use of force claims are not “essentially part” of a
claim arising out of his prosecution. Id. at 199. Furthermore,
even assuming that Heck v. Humphrey, 512 U.S. 477, 487 (1994),
could apply when the plaintiff has not yet been convicted, Price
has not explained how any of the claims addressed in Part II.A.,
supra, would necessarily imply the invalidity of a conviction.
Thus, we cannot conclude that Heck postponed the accrual of those
claims.

                                 -9-
limitations was plainly erroneous.9

      Second, the district court’s dismissal with prejudice affected

substantial rights because it resulted in the permanent loss of

Price’s claims.   Lastly, the court’s application of the statute of

limitations to permanently bar Price’s claims seriously affected

the fairness of judicial proceedings.           We have recognized that

holding a plaintiff’s section 1983 claim time-barred before it has

even accrued would be a “perverse result.”        Brummett v. Camble, 946

F.2d 1178, 1184 (5th Cir. 1991).          Thus, even assuming that plain

error review applies, we exercise our discretion to correct the

error.

      Although the district court’s dismissal with prejudice was

plainly erroneous, dismissal without prejudice of Price’s claims

that had not yet accrued would have been correct.         We, therefore,

affirm the dismissal of Price’s false arrest and prosecution claims

on   the   alternate   ground   that   criminal   proceedings   have   not

terminated in his favor.    See Aldrich v. Johnson, 388 F.3d 159, 160

(5th Cir. 2004) (per curiam).      We modify the judgment to reflect

that Price’s false arrest and prosecution claims are dismissed

without prejudice.     In so doing, we do not imply that Price could,

if criminal proceedings were terminated in his favor, state a

section 1983 claim for “malicious prosecution.”        We are mindful of



      9
      We would similarly conclude that the district court erred
if our review were de novo.

                                   -10-
Castellano’s conclusion that “malicious prosecution” alone does not

state a federal claim.      352 F.3d at 942.       Further, we have no

occasion   to   consider   here   the    significance   of   Castellano’s

suggestion that a section 1983 plaintiff might nevertheless state

a claim for “constitutional deprivations suffered in the course of

state court prosecution.”     Id. at 959.    We hold only that insofar

as any such claim exists, it would not accrue until criminal

proceedings terminate in favor of the plaintiff.

                           III.   Conclusion

      We AFFIRM the dismissal of Price’s section 1983 claims for

invasion of privacy, unreasonable search, and use of excessive

force as barred by the statute of limitations.          The dismissal of

the remainder of Price’s section 1983 claims is AFFIRMED but

MODIFIED such that his claims for constitutional deprivations

suffered in the course of his prosecution, including false arrest,

are dismissed WITHOUT PREJUDICE.

JUDGE EMILIO M. GARZA CONCURS IN THE JUDGMENT AND CONCURS IN THE

OPINION EXCEPT FOR PART II.B.




                                  -11-
