     Case: 11-41082     Document: 00511800205         Page: 1     Date Filed: 03/26/2012




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

                                                                            FILED
                                                                          March 26, 2012

                                     No. 11-41082                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



JOHN HUMPHREYS,

                                                  Plaintiff-Appellant
v.

CITY OF GANADO, TEXAS; NORMAN GLAZE, Chief; RODNEY ROBERSON,
Officer; GANADO POLICE DEPARTMENT; OTHER UNKNOWN POLICE
OFFICERS OF THE GANADO POLICE DEPARTMENT,

                                                  Defendants-Appellees



               Appeal from the United States District Court for the
                           Southern District of Texas
                            USDC No. 6:10-CV-00050



Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant John Humphreys appeals the district court’s grant of
a motion to dismiss in favor of Defendants-Appellees City of Ganado, Ganado
Police Department, Chief Norman Glaze, Officer Rodney Roberson, and other




       *
         Pursuant to FIFTH 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in FIFTH
CIR. R. 47.5.4.
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                                  No. 11-41082

unknown officers of the Ganado Police Department (“Defendants-Appellees”). We
AFFIRM.
                    FACTUAL AND PROCEDURAL BACKGROUND
      According to the facts as alleged by Plaintiff-Appellant Humphreys,
Humphreys was driving an electric car in July 2005 when the steering suddenly
locked-up. As a result, the car went off the road and into a nearby ditch.
Humphreys then parked the car in a school parking lot and walked home. Soon
after, Officer Roberson came to Humphreys’s home and began talking to
Humphreys through an open window. While Roberson and Humphreys were
talking through the window, other police officers entered Humphreys’s home and
tackled him. Humphreys was then placed under arrest and was detained while
Officer Roberson and Chief Glaze, as well as several other officers, searched his
home. Humphreys was indicted on charges of attempted murder and aggravated
assault with a deadly weapon in July 2005, although these charges were
dismissed due to insufficient evidence in July 2009.
      On June 29, 2010, Plaintiff-Appellant Humphreys filed suit, bringing
claims under both state and federal law. Specifically, he brings federal claims
against all of the Defendants-Appellees under 42 U.S.C. § 1983 for unreasonable
search and seizure, excessive force, and false arrest. He also brings Texas state-
law claims against Defendants-Appellees Glaze and Roberson for assault and
battery and false arrest, and against the City and Police Department of Ganado
for malicious prosecution. Finally, he seeks an injunction enjoining the state
from re-indicting him for the same offenses.
      The Defendants-Appellees filed a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), arguing that all of the claims were either barred by the
statute of limitations or by sovereign immunity. For his part, Plaintiff-Appellant
Humphreys filed a motion for partial summary judgment, requesting that the
district court rule there were issues of material fact on both the sovereign

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                                       No. 11-41082

immunity and statute of limitations defenses. The district court granted the
Defendants-Appellees’ motion to dismiss and denied Humphreys’s motion for
summary judgment, finding: (1) that the state and federal claims for excessive
force, assault and battery, unreasonable search and seizure, and false arrest
were all barred by the statute of limitations; (2) that the state malicious
prosecution claim was barred by state sovereign immunity; and (3) that the
claims for injunctive relief failed because Humphreys did not allege facts
constituting a danger of irreparable harm.1 On appeal, Humphreys argues that
all of the district court’s holdings were in error.
                                 STANDARD OF REVIEW
       We review de novo a district court’s grant of a motion to dismiss under
Rule 12(b)(6). Ballard v. Wall, 413 F.3d 510, 514–15 (5th Cir. 2005). We accept
“all well-pleaded facts as true and view[] those facts in the light most favorable
to the plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007). However,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009). We also review issues of law, such as rulings on statutes of limitations
and immunity, under a de novo standard of review. See Hale v. King, 642 F.3d
492, 497 (5th Cir. 2011) (sovereign immunity); Clymore v. United States, 217
F.3d 370, 373 (5th Cir. 2000) (statute of limitations).
                                         ANALYSIS
       First, the district court dismissed all of Humphreys’s claims for relief,
aside from his state-law malicious prosecution claim, as untimely filed.2 The


       1
         Plaintiff-Appellant Humphreys later filed a motion for a new trial under Federal Rule
of Civil Procedure 59, which the district court construed as a motion to reconsider and denied
because Humphreys presented no new arguments. Humphreys does not appeal the denial of
that motion.
       2
        The district court analyzed the state and federal claims for excessive force, assault
and battery, false arrest, false imprisonment, and unreasonable search and seizure together,

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limitations period for a claim brought under Section 1983 is determined by the
general statute of limitations governing personal injuries in the forum state.
Price v. City of San Antonio, 431 F.3d 890, 892 (5th Cir. 2005) (per curiam).
Thus, Texas law would govern in this case. The parties do not dispute that the
claims for excessive force, assault and battery, unreasonable search and seizure,
and false arrest are all governed by a two-year statute of limitations. TEX. CIV.
PRAC. & REM. CODE ANN. § 16.003(a); see also Schaefer v. Gulf Coast Regional
Blood Cntr., 10 F.3d 327, 331 (5th Cir. 1994) (stating that claims for personal
injury are governed by a two-year statute of limitations period under Texas law);
Gartrell v. Gaylor, 981 F.2d 254, 256–57 (5th Cir. 1993) (same).
       Although the statute of limitations is governed by Texas law, federal law
determines when a cause of action under Section 1983 accrues. Gartrell, 981
F.2d at 257. “Ordinarily, a cause of action under [S]ection 1983 accrues when
the plaintiff ‘knows or has reason to know of the injury which is the basis of the
action.’” Price, 431 F.3d at 893 (quoting Jackson v. Johnson, 950 F.2d 263, 265
(5th Cir. 1992)); Piotrowski v. City of Hous., 237 F.3d 567, 576 (5th Cir. 2001)
(same). Here, Humphreys became aware of the injuries upon which his claims
for excessive force, assault and battery, unreasonable search and seizure, and
false arrest are based on the day that those injuries occurred. Hitt v. Connell,
301 F.3d 240, 246 (5th Cir. 2002) (stating that the limitation period begins to run
“when the plaintiff becomes aware that he has suffered an injury or has
sufficient information to know that he has been injured” (quotation omitted));
Piotrowski, 237 F.3d at 576 (stating that a cause of action accrues when a



and dismissed all of the corresponding state claims when it found that the federal claims were
untimely. Plaintiff-Appellant Humphreys does not argue on appeal that the state-law claims
have a different limitations period or that the date of accrual of these claims is different.
Thus, he waives any argument that the state claims should be treated differently than the
corresponding federal claims. See Al-Ra’id v. Ingle, 69 F.3d 28, 33 (5th Cir. 1995) (stating that
argument is waived on appeal by failure to adequately raise it).

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                                        No. 11-41082

plaintiff knows of the existence of an injury and the connection between the
injury and the defendant’s actions). The existence of the various claimed
injuries here did not depend on the outcome of the subsequent criminal
proceedings. See Wallace v. Kato, 549 U.S. 384, 388 (2007) (a cause of action
accrues when a plaintiff has “a complete and present cause of action” (quotation
omitted)). Additionally, the statute of limitations on Humphreys’s claim for false
arrest began running, at the latest, when he was indicted in July 2005. See
Wallace, 549 U.S. at 391 (stating that the tort of unlawful arrest ends when the
victim becomes detained pursuant to legal process); Mapes v. Bishop, 541 F.3d
582, 584 (5th Cir. 2008) (same) (per curiam).3 Thus, the statute of limitations
period began running in July 2005 on all of these claims, and it had expired
approximately three years prior to the filing of this lawsuit in June 2010.
Accordingly, all of the state and federal claims, with the exception of the state-
law claim for malicious prosecution, were properly dismissed as untimely.
       Second, Plaintiff-Appellant Humphreys argues that the City and Police
Department of Ganado are not entitled to sovereign immunity because
municipalities may be sued for damages under 42 U.S.C. § 1983. As we already
noted, all of Humphreys’s claims—aside from the Texas state-law malicious
prosecution claim—are barred by the statute of limitations. Thus, the immunity
defense is only relevant to the remaining malicious prosecution claim. Contrary
to Humphreys’s assertion on appeal, he only brings a state-law claim for
malicious prosecution and he never alleged a federal malicious prosecution claim




       3
         Although repeatedly citing Monell v. Department of Social Services, 436 U.S. 658
(1978), in support of his municipal liability claims, Humphreys fails to present any argument
explaining why the accrual of the statute of limitations on his municipal liability claims should
be treated differently than the accrual of his claims against the individual officers. See
Piotrowski, 237 F.3d at 567–77 (discussing accrual of a cause of action against a muncipality
when relevant facts regarding municipal involvement were not available at time of injury).

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                                       No. 11-41082

below.4 Thus, because Humphreys only brings a state malicious prosecution
claim, his argument that state immunity defenses do not apply to federal
constitutional claims is not relevant. Further, Humphreys may not now assert
new claims for relief on appeal. Stewart Glass & Mirror, Inc. v. U.S. Auto. Glass
Discount Cntrs., Inc., 200 F.3d 307, 316–17 (5th Cir. 2000) (“It is a bedrock
principle of appellate review that claims raised for the first time on appeal will
not be considered.”). Therefore, we limit our analysis to the application of state
sovereign immunity to Humphreys’s state-law claim for malicious prosecution.
       The Texas Tort Claims Act provides a limited waiver of immunity for
certain suits against governmental entities. TEX. CIV. PRAC. & REMS. CODE ANN.
§ 101.021; Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374–76 (Tex.
2006). However, under the Act, immunity is expressly preserved for claims of
intentional torts. TEX. CIV. PRAC. & REMS. CODE ANN. § 101.057(2); Texas Dep’t.
of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001). Given that malicious
prosecution is an intentional tort, the municipal Defendants-Appellees are
entitled to immunity on this claim. See, e.g., Poole v. City of Killeen, 999 F.2d
1580, 1580 (5th Cir. 1993) (unpublished) (stating that malicious prosecution is
an intentional tort); Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.
App–Houston [1st Dist.] 1995, no writ) (same); Closs v. Goose Creek Consol.
Indep. Sch. Dist., 874 S.W.2d 859, 869 (Tex. App.–Texarkana 1994, no writ)




       4
         In his complaint Humphreys never alleges a claim for malicious prosecution under
federal law; instead, he only lists that cause of action as a state-law claim. Further, in his
motion to reconsider, Humphreys never argued or informed the district court that he believed
that it failed to consider a federal claim for malicious prosecution. Moreover, because
Humphreys did not bring a federal malicious prosecution claim, we need not determine
whether a federal malicious prosecution claim is cognizable under these circumstances. See
generally Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc) (discussing limited
nature of federal malicious prosecution claims).

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                                       No. 11-41082

(same). Therefore, the district court properly dismissed this claim as barred by
state immunity.5
       Finally, Plaintiff-Appellant Humphreys argues that the district court
should not have dismissed his claim for injunctive relief.                    In this claim,
Humphreys seeks an injunction barring the state from re-indicting him for the
same offenses. Humphreys, however, lacks standing to seek an injunction
because he fails to allege any facts or circumstances showing that there is “a real
and immediate threat that he w[ill] again” suffer a similar injury in the future.
City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983); In re Stewart, 647 F.3d 553,
557 (5th Cir. 2011) (same). Indeed, it is textbook law that “[p]ast exposure to
illegal conduct does not in itself show a present case or controversy regarding
injunctive relief . . . . ” O’Shea v. Littleton, 414 U.S. 488, 495 (1974); see also
Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003) (denying prospective relief
where plaintiff sought order barring future proceedings where there was no
threat of future suit); Johnson v. Moore, 958 F.2d 92, 94–95 (5th Cir. 1992)
(same). Here, Humphreys lacks standing to seek an injunction against future
prosecution for the same conduct because he alleges no facts indicating that such
prosecution is likely, or even threatened.                Indeed, any threat of future
prosecution is highly speculative. Therefore, the district court also properly
dismissed this claim.6



       5
          Humphreys also confusingly mentions his claim for intentional or reckless infliction
of emotional distress in his briefing. To the extent that Humphreys is arguing that dismissal
of this claim was inappropriate, the argument is waived because it was not presented to the
district court.
       6
          In dismissing this claim, the district court relied on Younger abstention. However,
because Plaintiff-Appellant Humphreys does not, more fundamentally, even have standing to
sue for injunctive relief, we need not determine whether Younger abstention applies in this
case. See Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001) (stating that a federal
court must always consider its jurisdiction).

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                              No. 11-41082

                              CONCLUSION
     For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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