     Case: 17-40346       Document: 00514499912         Page: 1     Date Filed: 06/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                     No. 17-40346
                                                                                  Fifth Circuit

                                                                                FILED
                                   Summary Calendar                          June 5, 2018
                                                                           Lyle W. Cayce
VICTOR VEGA,                                                                    Clerk


                                                  Plaintiff - Appellant

v.

TOWN OF FLOWER MOUND, TEXAS; CHIEF OF POLICE, Flower Mound
Police Department; MARTHA KOTILA; LAVONA BURGESS,
Property/Evidence Section, Flower Mound Police Department,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:16-CV-172


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Victor Vega, Texas prisoner # 1447025 and proceeding pro se, challenges
the summary-judgment dismissal of his 42 U.S.C. § 1983 action, which claims,
inter alia, that personal property seized and used as evidence in his state-court
criminal trial was improperly destroyed without adequate notice and
opportunity to be heard, in violation of his due-process rights.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                 No. 17-40346

      As an initial matter, Vega challenges the district court’s denial of his
Federal Rule of Civil Procedure 60(d)(1) postjudgment motion for relief from
judgment, in which he challenged the magistrate judge’s denial of his motions
for a default judgment and to strike defendants’ responsive pleadings. We lack
jurisdiction to consider these points because he did not file an amended, or
separate, notice of appeal after the court denied his Rule 60(d)(1) motion. 28
U.S.C. § 2107(a); Fed. R. App. P. 4(a)(4)(B)(ii) (party challenging order
disposing of postjudgment Rule 60 motion must file amended, or separate,
notice of appeal from entry of order); see e.g., Funk v. Stryker Corp., 631 F.3d
777, 780–81 (5th Cir. 2011) (holding court lacked jurisdiction to consider
district court’s denial of plaintiff’s postjudgment motions because he did not
file an amended, or separate, notice of appeal).
      Vega next contests the summary-judgment dismissal of his due-process
claim. In doing so, he challenges the determination that his claim was time-
barred, as well as the alternative conclusions that: it was barred by the
Parratt/Hudson doctrine, Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt
v. Taylor, 451 U.S. 527, 535–37 (1981); it lacked merit; and the individual
defendants had qualified immunity.
      With respect to the time-bar, Vega contends that, under the federal
“discovery rule”, although his property was destroyed pursuant to court order
on 19 November 2013, the applicable Texas two-year limitations period,
Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998); Tex. Civ. Prac. & Rem.
Code Ann. § 16.003(a), did not begin to run until he became aware in March
2015 of the property destruction. The discovery rule does not delay the accrual
date for Vega’s claim, however, because he has not shown he could not have
discovered it earlier, through the exercise of due diligence. See In re FEMA
Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 190 (5th Cir. 2011).



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                                  No. 17-40346

        Although Vega conclusionally asserts he “had no duty to be diligent prior
to March of 2015” because he was still actively pursuing his criminal appeal,
his conviction was affirmed on direct appeal in October 2008; his application
for postconviction relief was denied by the Texas Court of Criminal Appeals in
February 2010; and his second application for such relief was dismissed in
June 2011. Vega had no pending petitions for relief in state court after that
date.
        In that regard, he offers no explanation for failing to inquire about the
status of his property until four years after the denial of his last request for
relief in his criminal proceedings, despite knowing the property had been in
defendants’ custody prior to, and since, his 2007 conviction. Moreover, Vega’s
assertion that he could not have been expected to inquire about the status of
his property because he was still pursuing federal habeas relief is unavailing,
given that he did inquire despite the pendency of his federal petition.
Consequently, the discovery rule does not apply, meaning the limitations
period commenced on 19 November 2013, when his property was destroyed,
and expired two years later, on 19 November 2015. See id. at 190. Because
Vega filed this action in February 2016, it is untimely.
        Along that line, Vega contends he was entitled to equitable tolling,
asserting defendants fraudulently kept the destruction of his property from
him by sending defective notice to his former attorney. This, too, is unavailing.
Texas courts apply equitable tolling “sparingly”, doing so only when plaintiff
diligently pursued his rights; a litigant may not use the doctrine “to avoid the
consequences of their own negligence.” Hand v. Stevens Transp., Inc. Empl.
Benefit Plan, 83 S.W.3d 286, 293 (Tex. App. 2002). As explained supra, Vega
has not shown he pursued his rights diligently, warranting equitable tolling.
See id. at 293.



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                                 No. 17-40346

     Because this action was properly dismissed as untimely, we need not
address Vega’s remaining claims regarding the Parratt/Hudson doctrine, the
merits, or qualified immunity.
     DISMISSED IN PART FOR LACK OF JURISDICTION; AFFIRMED IN
PART.




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