     Case: 10-20821     Document: 00511718445         Page: 1     Date Filed: 01/09/2012




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

                                                                            FILED
                                                                          January 9, 2012
                                     No. 10-20821
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

PETE JOE VILLEGAS,

                                                  Plaintiff-Appellant

v.

PHILLIP GALLOWAY; ELIZABETH EPPIE; M. TODD; PAMELA HAYTER;
YOLANDA WASHINGTON; ET AL,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CV-2906


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Pete Joe Villegas, currently federal prisoner # 20355-179, was paroled in
2001 after serving a sentence for a Texas drug conviction. On April 29, 2003,
law enforcement officials executed a search warrant at a residence where
Villegas was staying and found numerous firearms. Villegas was indicted on two
federal firearms charges and was convicted by a jury in 2005. He was sentenced
to consecutive terms of 120 and 90 months in prison. In addition, Texas revoked


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20821

his parole in April 2006. This court affirmed Villegas’s federal conviction in
2007.
        In August 2010, Villegas filed a complaint against numerous defendants
involved in his arrest, prosecution, conviction, and parole revocation, alleging
violations of his civil rights under 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988;
assault and battery; false imprisonment; and violations of the Racketeer
Influenced and Corrupt Organization Act (RICO). He now appeals the district
court’s dismissal of his complaint. Finding no error, we affirm.
        Villegas contends that the district court erred by dismissing his claims as
time barred, as barred by Heck v. Humphrey, 512 U.S. 477 (1994), and for failure
to state a claim. We review de novo a dismissal as both frivolous and for failure
to state a claim under 28 U.S.C. § 1915(e)(2)(B)(i) & (ii). Samford v. Dretke, 562
F.3d 674, 678 (5th Cir. 2009).
        We first conclude that the individual capacity claims against Judge Lee
Rosenthal, who presided over Villegas’s criminal trial, and the four federal
prosecutors that he sued–Hazel Jones, Richard Magness, Michael Shelby, and
Chuck Rosenberg–are barred by absolute immunity, a threshold question that
is appropriate to address before reaching whether a claim is barred by Heck. See
Van de Kamp v. Goldstein, 555 U.S. 335, 343-44 (2009)(addressing absolute
prosecutorial immunity); Davis v. Tarrant County, 565 F.3d 214, 221-22 (5th Cir.
2009)(addressing absolute judicial immunity); Boyd v. Biggers, 31 F.3d 279, 284
(5th Cir. 1994)(“[I]t remains appropriate for district courts to consider the
possible applicability of the doctrine of absolute immunity . . . as a threshold
matter.”); Hulsey v. Owens, 63 F.3d 354, 356 (5th Cir. 1995)(absolute immunity
is a threshold matter that should be determined as early as possible in a
proceeding). Villegas alleged no facts that would overcome immunity of either




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                                        No. 10-20821

Judge Rosenthal1 or the four federal prosecutors. Similarly, to the extent that
they participated in the decision to revoke Villegas’s parole, the parole hearing
officers, Diane Schwartz, Sandy Fletcher, and Donna Graham-Green, and parole
officers Elizabeth Eppie, M. Todd, and Pamela Hayter, are absolutely immune
from suit. See Hulsey, 63 F.3d at 356; Farrish v. Miss. State Parole Bd., 836 F.2d
969, 975-76 (5th Cir. 1988). With respect to any actions by these defendants
regarding the criminal prosecution and parole revocation that might fall outside
the scope of absolute immunity, the claims are barred by Heck as discussed
below.
       Villegas’s arguments that his federal conviction was obtained through
constitutional violations at trial, including ineffective assistance of counsel, use
of perjured testimony and fabricated evidence, intimidation of witnesses,
suppression of favorable evidence, and a conspiracy by the defendants to
imprison him, necessarily imply that his conviction was invalid. Thus, as his
federal conviction has not been reversed, expunged, or invalidated, his claims
are barred. See Heck, 512 U.S. at 486-87; Stephenson v. Reno, 28 F.3d 26, 27
& n.1 (5th Cir. 1994). The same is true of Villegas’s claims that his parole
revocation proceeding was the product of false testimony and evidence
tampering, and that his parole was wrongly revoked. See McGrew v. Tex. Bd. of
Pardons & Paroles, 47 F.3d 158, 160-61 (5th Cir. 1995). Villegas concedes as
much, but he argues that a separate parole charge for a different violation
remains pending and asks this court for a stay of proceedings. Villegas admits
that he is challenging only the April 2006 revocation and does not explain what
challenge he can raise with respect to a parole revocation hearing that has not
taken place.



       1
         Villegas’s claim that Judge Rosenthal acted without any jurisdiction because she had
no jurisdiction over state proceedings is frivolous in light of the fact that Judge Rosenthal
presided only over federal proceedings over which she had jurisdiction as an Article III district
judge.

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                                  No. 10-20821

      With respect to Villegas’s claims arising out of the allegedly unlawful
search and seizure, Villegas correctly argues that a claim of unlawful arrest,
standing alone, does not necessarily implicate the validity of the underlying
criminal conviction. Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995).
However, such claims are time barred. For a civil rights action, federal courts
borrow the Texas personal injury statute of limitations, which is two years.
Texas Clinical Labs, Inc. v. Leavitt, 535 F.3d 397, 407 (5th Cir. 2008); Hitt v.
Connell, 301 F.3d 240, 246 (5th Cir. 2002). Villegas’s claims accrued when he
became aware that he suffered an injury or had sufficient information to know
that he has been injured. See Hitt, 301 F.3d at 246. The alleged Fourth
Amendment violations and purportedly unlawful arrest underlying Villegas’s
claims took place in April 2003, more than seven years before he filed his
complaint.
      Villegas contends that he was falsely imprisoned as a result of these
violations, and that a claim of false imprisonment does not begin to run until the
false imprisonment ends.      According to Villegas, under Texas law, false
imprisonment is a continuing tort and, therefore, his claim will not accrue until
he is released. Villegas is mistaken. Federal law, not state law, determines
when a claim accrues.       See Hitt, 301 F.3d at 246.        In addition, false
imprisonment ends when the defendant is held pursuant to legal process, such
as when he is arraigned or bound over by a magistrate. Wallace v. Kato, 549
U.S. 384, 389-90 (2007). Here, any claim of false imprisonment arising out of the
allegedly unlawful search and seizure accrued in 2003, when a magistrate judge
found probable cause to detain Villegas pending trial. Thus, the district court
correctly dismissed those claims as time barred. See id. at 391-92.
      In his brief, Villegas makes no mention of his assault and battery claims
or any state law bases for his claims. He has, therefore, abandoned those issues.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). He likewise has
abandoned any challenge to the court’s conclusion that he failed to state a claim

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under §§ 1981, 1985, and 1986. That determination was, in any event, correct
as Villegas did not allege any discriminatory motive See Jenkins v. Methodist
Hosp. of Dallas, 478 F.3d 255, 260-61 (5th Cir. 2007). On its face, §1988 does not
provide for a separate cause of action, only for recovery of attorney’s fees and
expert fees to parties prevailing on certain other causes of action.
      Finally, Villegas requests leave to file a supplemental brief to address two
arguments that he did not have time to address because he was required to
complete his brief in his § 2254 appeal. Supplemental briefs are ordinarily not
allowed. 5TH CIR. R. 28.4. Further, Villegas was granted two briefing extensions
totaling nearly 60 days, and he nevertheless filed his brief more than two
months past the extended deadline. He fails to explain, beyond a conclusional
assertion, why he had insufficient time to address his other arguments, nor do
we see any basis in the record or the applicable legal principles to conclude that
additional briefing would alter our analysis.
      JUDGMENT AFFIRMED; REQUEST TO FILE SUPPLEMENTAL BRIEF
DENIED.




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