* United States District Judge, Eastern District of Louisiana,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 91-1494

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OMER GILBERT PETE,

Plaintiff-Appellant,

versus

DON METCALFE, ET AL.,

Defendants-Appellees.

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Appeal from the United States District Court for the

Northern District of Texas

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(November 16, 1993)

Before GARWOOD and DEMOSS, Circuit Judges, and DUPLANTIER, District

Judge. *

GARWOOD, Circuit Judge:

Plaintiff-appellant Omer Gilbert Pete (Pete) appeals the

dismissal of his 42 U.S.C. § 1983 civil rights action against

various defendants arising out of his arrest, prosecution and

incarceration for sexual assault. We affirm.

Facts and Proceedings Below

Pete alleged that sometime in early 1985, Dudley Perry

(Perry), a Mesquite, Texas, police officer, confronted Pete with a1 According to Pete, after he was finally released from prison

he was able to speak to his daughter Samantha, at which point she

admitted fabricating the sexual assault charge against him. In

an affidavit executed by Samantha Pete on February 18, 1990, she

admitted to fabricating the accusations at the behest of Perry, charge by his daughter, Trellis, that Pete had raped her on July 3,

1982. Pete explained to Perry that he had been in a severe

a ccident on June 27, 1982, that had physically incapacitated him

for several months. Perry confronted Pete again sometime later and

stated that Trellis had changed her story and now recalled that

Pete had raped her in April or May of 1982. This second time

proved to be outside the limitations period for criminal charges.

On May 12, 1985, Pete was arrested and charged with multiple

felony offenses, including sexual assault of his younger daughter,

Samantha. The day after Pete's arrest, Perry showed Pete what

purported to be a signed statement by Samantha accusing Pete of

sexually assaulting her. Perry boasted to Pete that he (Perry) had

been after Pete for ten years and had finally gotten him. Pete

noticed at the time, however, that Samantha's alleged statement was

not in Samantha's handwriting, but in Trellis' handwriting, and

that Samantha's signature appeared to have been pasted onto the

document and photocopied.

According to Pete, Perry and Dennis Cox (Cox), an investigator

for the Dallas County District Attorney 's Office, had conspired

with Trellis to falsely accuse Pete. Also according to Pete, it

was Perry who persuaded Samantha to fabricate her charges of sexual

assault against Pete by convincing her that Pete had murdered his

wife (Samantha's mother), and would kill Samantha as well unless

she cooperated in having Pete sent to jail. 1Cox, and her sister, Trellis.

3

Pete retained attorneys Don Metcalfe (Metcalfe) and Paul Fourt

(Fourt) to represent him. Pete was released on bail on May 14,

1985, but was re-incarcerated shortly thereafter when the court

increased his bail. Pete posted bond and was again released on

July 29, 1985.

Pete was con victed of the charges against him and sent to a

Texas Department of Corrections (TDC) facility to ser ve his

sentence. On his direct appeal, Pete's conviction was reversed and

remanded for another trial by the Texas Fifth District Court of

Appeals in Dallas on May 7, 1986. The State petitioned the Texas

Court of Criminal Appeals for review; the Court of Criminal Appeals

denied the petition. Pete was transferred from the TDC facility

bac k to the Dallas County Jail on April 23, 1987, pending his

retrial.

Pete then again attempted to secure his release on bail from

the Dallas county jail. This release was precluded, however, by a

TDC administrative "hold" that had been placed on him. According

to Pete, at this point Metcalfe and Fourt did nothing to help him

secure his release and because of this, and because of their poor

performance in representing him, Pete fired them.

Prior to Pete's second trial, the court appointed attorney Sue

Gorham (Gorham) to represent him. Gorham arranged a plea bargain

for Pete whereby he would plead nolo contendere to the charges and

r eceive a sentence of the two years he had already se rved in

prison. Pete accepted the plea bargain.2 Samantha claimed in her affidavit that she had admitted to

Taylor, on at least one occasion, that she had fabricated her

accusation and testimony against Pete.

4 Even after the plea bargain was accepted by the court and

Pete's sentence set at time served, however, he was unable to

secure his release from Dallas County Jail because of the TDC hold

on him. He petitioned for a writ of h abeas corpus and was finally

released on November 26, 1987.

Pete also alleges that Joshua W. E. Taylor (Taylor), an

attorney, had been appointed as Samantha's guardian ad litem by the

Texas Juve nile Court on May 15, 1985, three days after Pete was

originally arrested. On October 31, 1985, the Juvenile Court

issued a permanent injunction that no contact be permitted between

Pete and Sama ntha. An exception to the injunction permitted

written correspondence between the two, but such letters were to be

screened by the Juvenile Court.

Pete alleged that Taylor knew that Samantha had fabricated her

charge against Pete, but withheld that information from the court. 2

Pete also claimed that Taylor aided Perry in persuading Samantha to

testify against Pete, and that Taylor further res tricted

communication between Pete and Samantha, which prevented Pete from

discovering what or who had caused her to falsely accuse him.

On October 16, 1989, almost two years after his final release

from prison, Pete filed this 42 U.S.C. § 1983 suit in United States

district court seeking d amages against Metcalfe, Fourt, Gorham,

Perry, Cox, Taylor, and the TDC for their p arts in his arrest,

prosecution, and imprisonment. The case was referred to a5

magistrate who, following diverse motions b y various of the

defendants and responses thereto by Pete, recommended dismissal of

Pete's claims because (1) Pete's claims were barred by the statute

of limitations, (2) the TDC was immune from liability by virtue of

the Eleventh Amendment, and (3) Metcalfe, Fourt, Gorham, or Taylor,

as private attorneys, were not state actors and therefore could not

be sued under section 1983. The district court adopted the

magistrate's findings and dismissed the suit. Pete filed a timely

notice of appeal.

Discussion

We first note that the Eleventh Amendment precludes Pete's

suit against the TDC for damages. A labama v. Pugh

, 98 S.Ct. 3057,

3058 (1978); Clay v. Texas Women's University

, 728 F.2d 714, 715

(5th Cir. 1984). Pete has not challenged this ruling on appeal.

Second, Metcalfe, Fourt, and Gorham , the attorneys who

represented Pete in this matter, are not stat e officers or

employees. The Supreme Court, in Dennis v. Sparks , 101 S.Ct. 183

(1980), held that the proper test for determining whether a private

party is amenable to suit under section 1983 is whether the party

was "a willful participant in joint a ction with the State or its

agents." Id. at 186.

In his pleadings, Pete charges Metcalfe, Fourt, and Gorham

with nothing more than professional malpractice. In his complaint,

Pete asserts liability of these three attorneys on the basis of

"inaction, negligence and malpractice [that] deprive [Pete] of

liberty and property without due process of law . . . ." Even3 Because we uphold the dismissal as to Taylor on other

grounds, we do not reach the question whether Pete's claims that

Taylor, as Samantha's guardian, aided Perry in convincing her to

testify against Pete while knowing that her accusations were

false state sufficient complicity between Taylor and a state

actor to render Taylor's actions "under color of state law"

within the meaning of Sparks

.

6 affording Pete's pro se pleadings the liberal construction to which

they are entitled, see Haines v. Kerner , 92 S.Ct. 594 (1972), we

c annot find any allegation of complicity between these attorneys

and any of the other state actors allegedly involved in Pete's

arrest and prosecution.

Applying the Sparks standard, we find that Pete did not plead

sufficient facts that, if true, would render Metcalfe, Fourt, and

Gorham amenable to suit under 42 U.S.C. § 1983. Pete's action with

regard to these defendants was properly dismissed. 3

As to the other defen dants, Perry, Cox, and Taylor, this

action must be dismissed in part on statute of limitations grounds

and in part on the merits.

In determining the limitations period for a section 1983

claim, we apply the applicable period provided by state law, in

this case the two-year Texas personal injury limi tations period.

Burrell v. Newsome

, 883 F.2d 416, 418 (5th Cir. 1989). In

determining when Pete's cause of action accrued, however, we apply

federal law. I d

. The federal standard provides that 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." Id

.

Pete knew he had been subject to wrongful arrest and

confinement at the hands of Perry and Cox on May 12, 1985. Pete4 The exact dates of Pete's first trial are not contained in

the record before this Court.

7 admitted below that he became aware of his claims against Taylor

during his first trial, which took place later in 1985. 4 In any

e vent, these facts were known to Pete more than two years before

October 16, 1989, the date Pete finally filed his section 1983

action. Unless the limitations period was tolled for some reason,

his claims against Perry, Cox, and Taylor would there fore be

barred.

Pete claims that the limitations period should be tolled until

the date of his final release from prison on No vember 26, 1987,

because of his imprisonment. The Supreme Court has held that for

section 1983 actions, the use of the state law limitations period

includes application of state tolling provisions for imprisonment.

Hardin v. Straub , 109 S.Ct. 1998, 2003 (1989).

Prior to September 1, 1987, Texas law recognized imprisonment

as a disability that would toll an otherwise applicable limitations

period. Tex. Civ. Prac. & Rem. Code Ann. § 16.001 (West 1985);

Burrell

, supra

, 883 F.2d at 418-19. However, Texas courts and this

Co urt uniformly held that tolling due to imprisonment under the

prior tolling statute ended on the date the plaintiff was first

released from prison. G lover v. Johnson

, 831 F.2d 99, 100-101 (5th

Cir. 1987 ). Also, subsequent re-imprisonment did not thereafter

suspend the running of the limitations period. Tex. Civ. Prac. &

Rem. Code Ann. § 16.001(d) (West 1985). The statute of limitations

on Pete's claims against Perry and Cox started to run, therefore,5 In a supplemental brief filed in this Court after the filing

of his reply brief herein, Pete argues for the first time that

"the time in which his State court appeal was proceeding" should

be excluded in computing limitations under our decision in

Jackson v. Johnson , 950 F.2d 263 (5th Cir. 1992). We reject this

contention. In the first place, it was not raised below in

Pete's several responses to the defense motions to dismiss on the

basis of limitations. Moreover, it was raised too late in this

Court. In the second place, Pete's direct appeal was completed

8 not later than May 14, 1985, the date Pete was first rele ased on

bail after his arrest.

Analysis of Pete's claims against Taylor is a bit more

complicated under this rule, however, because Pete apparently did

not discover Taylor's alleged participati on in his prosecution

until sometime during his first trial, and because the record of

this case does not clearly establish whether Pete was ever out of

prison after learning of Taylor's involvement.

Howev er, section 16.001 was amended in 1987 to omit

imprisonment as a disability that would toll a limitations period.

Tex. Civ. Pra c. & Rem. Code Ann. § 16.001 (West Supp. 1987).

Burrell, supra

, 883 F.2d at 419. Furthermore, section 65(a) of the

1987 act amending section 16.001 stated that:

"A period of limitatio ns that on August 31, 1987,

was tolled under Section 16.001 or 16.022, Civil Practice

and Remedies Code, because the person entitled to bring

the action was imprisoned, begins to run on [September 1,

1987]." See Burrell, supra , 883 F.2d at 419 & n.3.

Therefore, whatever the previous tolling provisions of Texas

law, the limitations period f or Pete's claims against Taylor, a t

the very latest

, began to run as of September 1, 1987. This means

that his section 1983 action, filed o n October 16, 1989, came at

least forty-six days too late. 5well over two years before his section 1983 action was filed, so

exclusion of "the time in which his State court appeal was

pending," as Pete requests, would not alter the result. Finally,

Jackson is inapplicable for other reasons also.

In Jackson , a prisoner filed a section 1983 action within

the limitations period, but the district court found that the

action challenged the validity of his conviction (for which he

was still incarcerated) and was more properly styled as a

petition for habeas corpus . A petition for habeas corpus in

federal court requires that state habeas remedies be exhausted,

however, and so the federal section 1983 action was dismissed. It

was on these facts that this Court found later that under Texas

law the federal exhaustion requirement tolled running of the

limitations period until the state remedies had been exhausted.

Id . at 265-67.

Jackson is inapplicable to this case, however, because by

the time the section 1983 action here was filed, Pete had long

been out of prison and this action could not therefore be

construed as a habeas corpus petition. Furthermore, the Texas

tolling rule relied upon by the Jackson Court is inapplicable

because there were no pending legal proceedings that prevented

Pete from filing his section 1983 action long before limitations

expired. See id . at 265.

6 We note that this theory could only apply to Pete's postconviction incarceration. His original arrest and detention were

terminated by his release on bail pending his first trial. Any

action for false arrest or false imprisonment would therefore

have accrued, at the very latest, when he was released on bail

the second time on July 29, 1985. The limitations period had

long since run on these injuries by October 1989.

9 Pete alleges one additional theory, however, that merits

discussion. Texas law has recognized the concept of "continuing

tort" in which tortious behavior is repeated or continues for a

period of time. 6 In A dler v. Beverly Hills Hosp.

, 594 S.W.2d 153

(Tex. Civ. App. 1980, no writ), the plaintiff filed a false

imprisonment suit against a mental hospital more than two years

after his confinement began, but less than two years after it

ended. The court held that false imprisonment was a continuing

tort and thus for limitations purposes the claim accrued when the10

detention ended. The Adler court rejected the notion espoused by

other courts that a new and separate tort was committed on each day

that the detention continued. The court reasoned that such a

conceptual formulation would lead to a multiplicity of suits and

would complicate damage calculations. Instead, the court concluded

that the unlawful detention constituted a single, continuing tort

and that the most logical point to fix accrual was when the tort

was comple ted, i .e.

, when detention ended. I d

. at 155-56. S ee

also Smith v. Avance

, 553 F.Supp. 434 (E.D. Tex.) (applying Adler 's

holding to a section 1983 claim for personal injury and wrongful

arrest and confinement), aff'd

, 683 F.2d 415 (5th Cir.), cert.

denied , 103 S.Ct. 351 (1982).

The decision of when a false imprisonment claim accrues for

the purposes of bringing a section 1983 action in federal court is

a difficult one. Because Pete's post-conviction false imprisonment

claims may be dismissed on their merits, this case does not present

the proper circumstance to answer that question.

The elements of false imprisonment are (1) willful detention,

(2) without consent, and (3) without authority of law. S ears,

Roebuck & Co. v. Castillo

, 693 S.W.2d 374, 375 (Tex. 1985). It is

also generally the rule that no action for false imprisonment will

lie where the detention was executed by virtue of legally

sufficient process duly i ssued by a court of competent

jurisdiction. S anchez v. Garza

, 581 S.W.2d 258, 259 (Tex. Civ.

App. 1979, n.w.h.). This is true where an arrest is pursuant to a

validly issued arrest warrant, see id

., and must also be true7 Of course, this analysis would not dispose of Pete's claim,

were he able to assert one, for the extension of his imprisonment

due to the TDC "hold" that was placed on him. However, this

claim would be against the TDC itself rather than Perry, Cox, or

Taylor, who are not alleged to have had anything to do with it,

and as we have already discussed, supra , the TDC is immune from

Pete's claims against it.

11 where, as here, Pete's two-year imprisonment was the result of a

judgment of conviction by a court with jurisdiction over him. 7 S ee

also 32 Am. Jur. 2d, False Imprisonment, § 80; Restatement (Second)

of Torts

, § 37, comment b ; Prosser and Keeton on Torts (5th ed.

1984), § 11 at 54.

Nor does Pete's claim of malicious prosecution cha nge the

result, because that claim, too, fails on its merits. The elements

of a malicious prosecution claim are: (1) a criminal action was

commenced against the plaintiff; (2) the prosecution was caused by

the defendant or with his aid; (3) the action terminated in

plaintiff 's favor; (4) the plaintiff was innocent; (5) the

defendant acted without probable cause; (6) the defendant acted

with malice; and (7) the criminal proceeding damaged the plaintiff.

Brown v. United States

, 653 F.2d 196, 198-99 (5th Cir. 1981), cert.

denied

, 102 S.Ct. 1970 (1982). Pete fails to state a claim for

malicious prosecution because his prosecution ended with a plea of

nolo contendere and resulting conviction and thus the act ion did

no t terminate in his favor. This bars any action for malicious

prosecution. S ee Brown v. Edwards

, 721 F.2d 1442, 1448-49 n.8 (5th

Cir. 1984) an d authorities there cited; B rummett v. Camble

, 9468 Under Brummett , the statute of limitations would not

commence to run on the malicious prosecution claim until Pete's

1987 conviction on his plea of nolo contendere . The exact date

of that conviction is not in this record.

9 "[D]ismissal of a criminal prosecution brought about by the

procurement or compromise of the person therein accused is not

such an end of the prosecution as will warrant an action for

damages for malicious prosecution." Ellis v. Sinton Savings

Ass'n , 455 S.W.2d 834, 842 (Tex. Civ. App. 1970, writ ref'd

n.r.e.). See also Restatement (Second) of Torts § 660(a); 32 Am.

Jur. 2d, Malicious Prosecution , § 43; Prosser and Keeton , § 119

at 875.

This Court has, in the past, reached the conclusion that so

long as a criminal conviction is valid, the criminal defendant is

collaterally estopped from bringing a section 1983 action based

on events surrounding the prosecution. See Martin v. Delcambre,

578 F.2d 1164, 1165 (5th Cir. 1978). See also Walker v.

Schaeffer , 854 F.2d 138, 140, 142-43 (6th Cir. 1988). However,

we do not rely on this theory because the Supreme Court's

decision in Haring v. Prosise , 103 S.Ct. 2368 (1983), handed down

after Martin , makes a collateral estoppel analysis turn on the

particular issues presented and whether they were litigated and

necessary to the decision in the state court proceedings.

12 F.2d 1178, 1183-84 (5th Cir. 1991). 8 Obviously, a conviction is

not a termination favorable to the accused. Even a dismissal

pursuant to a compromise is not. 9

Conclusion

Pete's claims as to all the named defendants are either barred

or fail to st ate a claim on which relief can be granted.

Therefore, the judgment of the distr ict court dismissing Pete's

section 1983 action is

AFFIRMED.