No. 99-40266

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-40266

Summary Calendar

 

KEVIN NICKERSON; ANGELA NICKERSON; and NEAL HARVILLE,

Plaintiffs-Appellants,

versus

STATE OF TEXAS; WAYNE SCOTT, Director 

of Operations in his Personal & Official 

Capacities; JAMES KEITH PRICE, Senior 

Warden, in his Personal & Official 

Capacities; JERRY JACKSON, Assistant 

Warden, in his Personal & Official 

Capacities; LATHAM BOONE, Special 

Prosecutor; RAY MONTGOMERY, Special 

Prosecutor; TOM DAVIS, Captain; JERRY 

CLEMENTS, Employee of the Texas 

Department of Criminal Justice Internal 

Affairs Division; DEBRA LEONARD, 

Employee of the Texas Department of 

Criminal Justice Internal Affairs 

Division; ALAN POLUNSKY, Chairman; JOHN 

DAVID FRANZ, Member of the Texas Board 

of Criminal Justice; NANCY PATTON, 

Member of the Texas Board of Criminal 

Justice; CAROLE S. YOUNG, Member of the 

Texas Board of Criminal Justice; ALFRED 

MORAN, Member of the Texas Board of 

Criminal Justice; PATRICIA DAY, Member 

of the Texas Board of Criminal Justice; 

LAWRENCE FRANCIS, Member of the Texas 

Board of Criminal Justice; A. M. 

STRINGFELLOW, Member of the Texas Board 

of Criminal Justice; CAROL VANCE, Member 

& Former Chairperson of the Texas 

Department of Criminal Justice, in their 

Official Capacities; UNIDENTIFIED PARTY, 

Unknown Agents or Employees of the Texas 

Department of Criminal Justice; ANDY 

COLLINS, Texas Department of Criminal 

Justice Institutional Division, Executive 

Director in his Official Capacity,

Defendants-Appellees.

--------------------
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* 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that this opinion should not be published and is not precedent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.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:98-CV-136

--------------------

January 31, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Kevin and Angela Nickerson and Neal Harville (“Plaintiffs”),

former correctional officers of the Texas Department of Criminal

Justice (TDCJ), appeal the district court’s dismissal of their

complaint with prejudice. Plaintiffs’ claims arose after they

were accused of using improper force on an inmate, dismissed from

their jobs, and faced with prosecution by the state. After a

trial, the Nickersons were acquitted of all charges on June 3,

1996, and the charges against Harville were dropped on June 13,

1996. Plaintiffs filed their complaint on June 3, 1998.

We review de novo a district court’s dismissal of a

complaint pursuant to Rule 12(b)(6). Capital Parks, Inc. v.

Southeastern Adver. & Sales Sys., Inc., 30 F.3d 627, 629 (5th

Cir. 1994). We will uphold such a dismissal “only if it appears

that no relief could be granted under any set of facts that could

be proven consistent with the allegations." Id. (citation

omitted). We accept all well-pleaded facts as true and view them

in the light most favorable to the plaintiff. Id.

Plaintiffs argue that the district court erred by dismissing

their 42 U.S.C. § 1983 claims as barred by the statute of
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limitations. There is no federal statute of limitations for

§ 1983 actions, and the federal courts borrow the forum state’s

general personal injury limitations period. Owens v. Okure, 488

U.S. 235, 249-50 (1989). In Texas, the relevant limitations

period is two years. Henson-El v. Rogers, 923 F.2d 51, 52 (5th

Cir. 1991). Although the federal courts look to state law to

determine the applicable statute of limitations, they look to

federal law to determine when a cause of action accrues. Pete v.

Metcalfe, 8 F.3d 214, 217 (5th Cir. 1993). Under Heck v.

Humphrey, 512 U.S. 477, 489 (1994), and similar cases, if the

“termination of [an] underlying criminal proceeding in favor of

the accused is an essential element of a § 1983 claim,” the claim

accrues only when the favorable termination occurs. Brummett v.

Camble, 946 F.2d 1178, 1184 (5th Cir. 1991). If favorable

termination is not required, a claim accrues immediately. See,

e.g., Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995). The

rule of Heck applies whenever a judgment in the accused’s favor

would have necessarily implied that the accused was innocent. 

Wells v. Bonner, 45 F.3d 90, 94 (5th Cir. 1995).

Plaintiffs were not specific in their complaint about the

nature of their § 1983 claims. From the section of the complaint

styled “factual allegations,” we discern the following

allegations. Plaintiffs complained that Harville’s pre-riot

complaints about prison conditions went without official

response. They complained that Internal Affairs investigators

coerced statements from them and used “irregular” witness

statements. They complained about the TDCJ’s termination of
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1 For the first time on appeal, Plaintiffs argue in their

reply brief that equitable tolling should be applied to their

claims. However, we do not consider arguments made to us for the

first time in a reply brief. Stephens v. C.I.T. Group/Equip.

Fin., Inc., 955 F.2d 1023, 1026 (5th Cir. 1992).

their employment, the TDCJ’s refusal to expunge Harville’s

records completely, and the TDCJ’s failure to rehire them after

the Nickersons were acquitted and the charges against Harville

were dismissed. Plaintiffs also complained that prosecutors

brought criminal charges against them “even though there was

exculpatory evidence available” and that the prosecutors failed

to turn this exculpatory evidence over to them.

Plaintiffs’ claims about Harville’s pre-riot complaints and

the TDCJ’s decision to fire them did not require a favorable

termination in their criminal cases and, accordingly, accrued

well before June 1996.1 The district court did not err in

holding that these claims were barred by the statute of

limitations.

As to Plaintiffs’ claims involving the investigators’

tactics and the prosecutors’ conduct during the criminal

prosecution, these claims--if successful--would have implied the

invalidity of the charges against Plaintiffs. These claims

accrued at the time of the acquittals and dismissals. See Wells,

45 F.3d at 94-95 (malicious prosecution). Having reviewed the

complaint, however, we conclude that Plaintiffs’ claims against

the investigators were wholly conclusional. We can find no

factual support for the claims in the complaint; Plaintiffs

merely asserted that coercion and “irregular” witness statements

occurred. These bare, conclusion allegations are insufficient to
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2 For this reason, we do not reach the Plaintiffs’ argument

that these two claims constituted continuing violations of their

rights.

 

3 Boone and Montgomery argue that Plaintiffs waived any

arguments about immunity by not briefing the issue in their main

brief. Because the district court’s judgment was not premised on

prosecutorial immunity, Plaintiffs were under no obligation to

brief the issue.

support a § 1983 action. Macias v. Raul A. (Unknown), Badge No.

153, 23 F.3d 94, 99 (5th Cir. 1994). Thus, the only viable

malicious-prosecution claim is Plaintiffs’ claim against the

prosecutors themselves.

The remaining claims, that the TDCJ somehow violated

Plaintiffs’ constitutional rights by not reemploying them and by

not fully expunging their employment records after the acquittals

and dismissal, occurred within the two-year limitations period. 

These two claims were not barred by the limitations period.2

However, the district court dismissed the TDCJ from the case on

Eleventh Amendment grounds, and Plaintiffs do not challenge that

conclusion on appeal. Thus, the district court committed no

reversible error in dismissing these claims.

Boone and Montgomery argue that the dismissal of claims

against them may be affirmed on the basis of absolute

prosecutorial immunity. We conclude that the district court did

not directly hold that the prosecutors were entitled to

immunity.3 “[A]n appellee generally may urge in support of a

judgment any matter appearing in the record.” Kiser v. Garrett,

67 F.3d 1166, 1169 (5th Cir. 1995). Plaintiffs addressed the

prosecutors’ arguments about prosecutorial immunity in the
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4 Some of the appellees argue that there is no federal claim

for malicious prosecution. Because of our disposition of the

malicious-prosecution claims, we do not reach this argument.

district court, and they have done so on appeal as well. 

Accordingly, we consider the prosecutors’ arguments.

Prosecutors are entitled to absolute immunity for their

decisions to initiate a criminal prosecution and for their

actions during the course of a prosecution. See, e.g., Imbler v.

Pachtman, 424 U.S. 409, 431 (1976). This disposes of Plaintiffs’

arguments that Boone and Montgomery may be liable for filing

charges against them or for their failure to turn over

exculpatory evidence. Id. at 431 & n.34. Plaintiffs argue that

Boone, at least, lost his immunity by attesting to the

credibility of an investigator when he signed the investigator’s

warrant for Harville’s arrest. Even if Plaintiffs are correct

that Boone would not be entitled to immunity for this activity,

cf. Kalina v. Fletcher, 118 S. Ct. 502, 509-10 (1997), their

complaint contained no claims relating to Boone’s signing of this

affidavit. A prosecutor who lacks immunity for some actions does

not lose his immunity for the more traditional prosecutorial

functions he also performed. See, e.g., Burns v. Reed, 500 U.S.

478, 492-96 (1991). Boone and Montgomery are absolutely immune

for the claims raised in Plaintiffs’ complaint.4 These § 1983

claims, like all the others, were properly dismissed by the

district court.

Plaintiffs argue that the district court improperly

dismissed their Racketeer Influenced and Corrupt Organizations

Act (RICO) claim. To state a civil RICO claim the plaintiff
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5 Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980), aff'd

in part and vacated in part, 679 F.2d 1115, amended in part and

vacated in part, 688 F.2d 266 (5th Cir. 1982).

must allege "1) a person who engages in 2) a pattern of

racketeering activity, 3) connected to the acquisition,

establishment, conduct, or control of an enterprise." In re

Burzynski, 989 F.2d 733, 741 (5th Cir. 1993) (internal quotations

and citation omitted). To establish a "pattern of racketeering

activity" a plaintiff must show "at least two predicate acts of

racketeering that are related and amount to or pose a threat of

continued criminal activity." Tel-Phonic Servs., Inc. v. TBS

Int'l, Inc., 975 F.2d 1134, 1139-40 (5th Cir. 1992). The

plaintiff must plead the elements of the criminal offenses that

comprise the predicate acts. Elliott v. Foufas, 867 F.2d 877,

880 (5th Cir. 1989). Accordingly, Plaintiffs’ complaint, which

did not allege two acts of racketeering, is insufficient to state

a RICO claim.

Plaintiffs argue that the district court erred in holding

that they lacked standing to sue pursuant to the remedial decree

in Ruiz v. Estelle5, issued after constitutional infirmities were

found in Texas’s prison system. Violations of the Ruiz decree,

without more, are not cognizable in a § 1983 action. Green v.

McKaskle, 788 F.2d 1116, 1122-23 (5th Cir. 1986). To state a

claim under § 1983, plaintiffs must allege that they have been

injured by some constitutional violation of a defendant. Id.

That did not occur here. There was no error in the district

court’s dismissal of Plaintiffs’ Ruiz claim.
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Plaintiffs argue that the district court erred in dismissing

their supplemental state-law claims with prejudice. They contend

that because the district court declined to consider the statelaw claims, it should have dismissed those claims without

prejudice. This argument makes little sense, as it has no

factual basis in the district court’s opinion. Although the

district court did not address Plaintiffs’ state-law claims in a

separate section of its opinion, it expressly held that it was

dismissing (i) Plaintiffs’ “civil conspiracy, fraud, invasion of

privacy claims and a claim for intentional infliction of

emotional distress” as barred by the two-year statute of

limitations and (ii) their libel and slander claims as barred by

a one-year statute of limitations. Plaintiffs have not argued

that the district court erred in dismissing their state-law

claims on limitations grounds. Accordingly, they have waived any

such argument. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.

1993).

For the foregoing reasons, the district court’s judgment is

AFFIRMED.