IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20312

Summary Calendar

RODNEY JOHN RAMIREZ,

Plaintiff-Appellant

v.

JOHN/JANE DOE #1, Chairperson, Texas Department of Criminal Justice -

Classification and Records Office; JOHN/JANE DOE #2, Assistant Director, 

Texas Department of Criminal Justice - Classification and Records Office; 

JOHN/JANE DOE #3, Intake Administrator, Texas Department of Criminal 

Justice - Classification and Records Office; JOHN/JANE DOE #4, Intake 

Interviewer, Texas Department of Criminal Justice - Classification and 

Records Office, 

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:17-CV-2750

Before HIGGINBOTHAM, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

Rodney John Ramirez, Texas prisoner # 864913, appeals the dismissal 

of his 42 U.S.C. § 1983 complaint under 28 U.S.C. § 1915(e)(2)(B) with 

 

* Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 1, 2019

Lyle W. Cayce

Clerk

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No. 18-20312

2

prejudice as time barred. His complaint alleged a claim of wrongful 

imprisonment. Ramirez was sentenced on April 6, 1989, in connection with his 

conviction for the third degree felony offense of theft over $750, to six years of 

imprisonment with a credit of 48 days. He asserted that, when he was 

processed by the Texas Department of Criminal Justice (TDCJ) in October 

1989, unknown personnel erroneously listed his conviction as the first degree 

felony offense of burglary of a habitation. Ramirez stated that the convicting 

court issued a judgment nunc pro tunc on April 20, 1990, wherein the time 

credit was increased to 116 days, and claimed that the judgment removed the 

inaccurate reference to the offense being Burglary of a Habitation. Ramirez 

further claimed that the convicting court, in December 1991, issued a second 

judgment nunc pro tunc instructing TDCJ officials to conform its records to 

reflect a conviction for theft. Ramirez indicated that he discharged the 

sentence on March 18, 1995, and that, on January 25, 2016, the trial court 

again ordered the TDCJ to correct its records; the records were corrected on 

May 9, 2016. Ramirez argues that the district court abused its discretion in 

dismissing his complaint as time barred. He asserts that the limitations period 

was tolled when he received the court’s order on April 20, 1990, and that it 

remained tolled until the TDCJ corrected its records on May 9, 2016. He also 

complains that Texas officials failed to comply with state law requirements 

when he discharged the sentence. 

We review the district court’s dismissal pursuant to § 1915(e)(2)(B)(i) for 

an abuse of discretion. Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir. 2009). 

Because no federal statute specifies a limitation period for § 1983 suits, federal 

law borrows the forum state’s general personal injury limitation period. 

Wallace v. Kato, 549 U.S. 384, 387-88 (2007). In Texas, the applicable period 

is two years. TEX. CIV. PRAC. and REM. CODE ANN. § 16.003(a). 

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Although the Texas limitations period applies, federal law governs when 

Ramirez’s claim accrued. See Wallace, 549 U.S. at 387. Under federal law, the 

statute of limitations commences when the plaintiff becomes aware that he has 

suffered an injury. Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir. 

1995). 

Though Ramirez suggests that the convicting court documents from 1990 

and 1991 led him to believe that the TDCJ records had been corrected, these 

documents do not support his argument. Neither document directs the TDCJ 

to corrects its records. There is no indication that Ramirez filed anything to 

correct the error until 2015, and Ramirez does not dispute the district court’s 

finding that he discovered the error in 1989. Even if Ramirez did not discover 

the error in 1989 but instead discovered it when the sentence was discharged

in 1995, the instant § 1983 complaint was still filed in 2017, well after the 

expiration of the statute of limitations. There is no showing of diligence or lack 

of notice of a filing requirement that would support tolling of the limitations 

period. See Hand v. Stevens Transport, Inc., 83 S.W.3d 286, 293 (Tex. App. 

2002). The district court did not abuse its discretion by dismissing Ramirez’s 

complaint under § 1915(e)(2)(B)(i). See Brewster, 587 F.3d at 767.

The judgment of the district court is AFFIRMED.

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