### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-41082 Summary Calendar

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 D e f e n dants-Appellees City of Ganado, Ganado Police D e p a r t ment, Chief Norman Glaze, Officer Rodney Roberson, and other U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 26 , 20 12 Lyle W . Cayce Clerk

Purs uant to F IFT H C IR

. R. 47.5 , the cour t has det erm ined that this opi nion sho uld not * be publ ish ed andis not pr ece dent except underthe lim ite d cir cum st ance s se t for th in F IFT H C IR

. R. 47.5 .4. Case: 11-41082 Document: 00511800205 Page: 1 Date Filed: 03/26/2012No. 11-41082

unknown officers o f t h e G a n a d o P o l i c e D e p a r t m e n t (“ D e f e n d a n t s - Ap p e l l e e s ” ). We AFFIRM. F A C T U A L A N D P R O C E D U R A L B A C K G R O U N D 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 t h e r o a d a nd 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 a n o p e n window. While Roberson and Humphreys were talking through the windo w , o t h e r p o l i c e o f f i c e r s e n tered 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 atte m p t e d m u r d e r a n d aggravated assault with a deadly weapon in July 2005, although these cha r ges were dismissed due to insufficient evidence in July 2009. On June 29, 2 010, 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 statelaw claims against Defendants-Appellees Glaz e a n d R oberson for assault and battery and false arrest, and against the City and Police Department of Ganado for malicious pro s e c u tion. 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 limitation s o r b y s o v e r e i g n i mmunity. For his part, Plaintiff-Appellant Humphreys filed a motion for partial summary judgment, requesting t h at the district court rule there were issues of material fact on both the sovereign

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immunity and stat u t e of limitations defenses. The district court granted the Defendants-Appellees’ motion to dismiss and denied Humphrey s ’ s m otion for
summary judgment, finding: (1) that the state and federal claims for excessive force, assault and battery, unreasonable search and seizur e , a n d false arrest

w e r e a l l barred by the statute of limitations; (2) that the state malicious
p r o s e cution claim was barred by state sovereign immunity; and (3) that th e claims for injunctive relief failed because H u m p h r e y s did not allege facts constituting a danger of irreparable harm. On appeal, Humphreys argues that 1 all of the district court’s holdings were in error. S T A N D A R D O F R E V I E W We review de novo a district court’s grant of a motion to dismiss u n d er 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 t h e p l aintiff.” Stokes v. Gann , 498 F.3d 483, 484 (5th Cir. 2007). However, “[t]hreadbare recitals of the elements of a cause of action, s u p p orted 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) (so v e r e ign immunity); Clymore v. United States , 217 F.3d 370, 373 (5th Cir. 2000) (statute of limita tions). AN A L Y S I S First, the district court dismissed all of Humphreys’s claims for re l ief, aside from his state-law malicious prosecution claim , a s untimely filed. The 2

Plaint iff-Ap pel lant Hu mp hreys late r fil ed a mo tio n for a new tri al unde r Fede ral Rule 1 of Civil Proc edur e 59, wh ich the dis tri ct cour t cons tru ed as a mo tio n to rec ons ide r and deni ed beca use Hu mp hreys pr es ente d no new argum ents

. Hu mp hreys doe s not app eal the deni al of that m oti on. The dis tri ct cour t analyzed the st ate and fed eral clai ms for ex c e ss ive for ce, ass ault 2 and batt ery, fal se arr es t, fal se im pr iso nme nt, and unrea so nable se arc h and se izure toget her,
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limitations period for a claim brought under Section 1983 is determined by the general statute of limitations govern i n g p ersonal injuries in the forum state. Price v. City of San A n tonio , 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. T E X

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. & R E M

. C O D E A N N

. § 16.003(a); see also Schaefer v. G u l f Coast Regional B lood Cntr. , 10 F.3d 327, 331 (5th Cir. 1994) (stating that claims for person a l 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 S e ction 1983 accrues. Gartrell , 981 F.2d at 257. “Ordinarily, a cause of action under [S]ection 1983 a c c r u e s w h e n 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 ( 5 t h C ir. 1992)); Piotrowski v. City of Hous. , 237 F.3d 567, 576 (5th Cir. 200 1 ) (same). Here, Humphreys became aware of the injuries upon which his claims for excessive force, ass a u l t 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 becom e s a w a r e that he has suffered an injury or has sufficient informat i o n t o know that he has been injured” (quotation omitted)); Piotrowski , 237 F.3d at 576 (stating that a ca u s e o f a ction accrues when a

and dis mi ss ed all of the cor res pond ing st ate clai ms wh en it fou nd that the fed eral clai ms we re untim ely. Plaint iff-Ap pel lant Hu mp hreys doe s not argue on app eal that the st ate- law clai ms have a dif

fer ent lim itat ions per iod or that the d a t e o f a c c rual of thes e clai ms is dif fer ent. Thus, he wa ives any argum ent that the st ate clai ms sho uld be tre ated dif f e r e n t l y than the
cor res pond ing fed eral clai ms
. See Al -Ra ’i d v. Ingle , 69 F.3d 28, 33 (5t h Cir. 1995) (s tat ing that argum ent is wa ived on app eal by f ailur e t o a deq uate ly r ais e i t)

.

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plaintiff knows of the existence o f a n i njury and the connection between the injury and the defendant’s actions). T h e e x i stence of the various claimed injuries here did not depend on t h e o u t come 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 o n H u m p h r e y s ’ 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). Thus, the statute of limitations 3 period began running in July 2005 on all of these claims, and it had expired approximat e l y t h r e e years prior to the filing of this lawsuit in June 2010. Accordingly, all of the state and federal claims, with the exception of the statelaw claim for malicious prosecution, were properly dismissed as untimely. Second, Plaintiff-Appellant Humphreys a r gues 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 Humphrey s ’ s c l aims—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 ass e r t i o n on appeal, he only brings a state-law claim for malicious prosecution and he never a l l e g e d a f e d e ral malicious prosecution claim

Altho ugh rep eate dly cit ing Mo nel l v. De pa rtme nt of Soci al Serv ic es , 4 3 6 U

. S. 658 3 (197 8), in sup por t of his mun icip al liabil ity clai ms , Hu mp hreys fai ls to pr es ent any argum ent expla ining wh y the acc rual of the st atut e of lim itat ions on his mun icip al liabil ity clai ms sho uld be tre ated dif

fer entl y t h a n t h e acc rual of his clai ms agains t the indi vidual off icer s. See Piotr ow ski , 237 F.3d at 567–77 (dis cus sin g acc rual of a caus e of act ion agains t a mun cip alit y wh en rele vant fac ts r egard ing m unici pal involvem ent we re not availabl e a t tim e o f injury)

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below. Thus, because Humphreys only brings a sta t e malicious prosecution

4 claim, his argument that state immunity defenses do not apply t o 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 Di s c ount 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 o f i m m u n ity for certain suits against governmental entities. T E X

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. § 101.021; Reata Constr. Corp. v. City of Dal l a s , 197 S.W.3d 371, 374–76 (Tex. 2006). However, under the Act, immunity is express l y p r e s e r ved for claims of intentional torts. T E X

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. § 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 t o r t, the municipal Defendants-Appellees are entitled to immunity on this c l a i m
. 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, 12 2 (Tex. App

– H o u s t o n [1st Dist.] 1995, no writ) (same); Closs v. Goose Creek Consol. Indep. Sch. Dist. , 874 S.W.2d 859, 869 (T e x
. A p p.–Texarkana 1994, no writ)

In his com p l a int Hu mp hreys never allege s a clai m for mal icio us pr os ecut ion unde r 4 fed eral law ; ins tead , he only lis ts that caus e of act ion a s a st ate- law clai m. Furt her, in his
mo tio n to rec ons ide r, Hu mp hreys never argued or info rm ed the dis tri ct cour t that he belie ved that it f

a i l e d t o cons ide r a fed eral clai m for mal icio us pr os ecut ion. Mo reo ver, beca use Hu mp hreys did not bring a fed eral mal icio us pr os ecut ion clai m, w e n e e d not det erm ine wh ethe r a fed eralmalic ious pros ecut ion clai m is cognizable underthes e circ ums tanc es
. See gener al ly Caste ll ano v. Frago zo , 352 F.3d 9 3 9 ( 5 t h C ir. 2003) (en banc) (d isc uss ing lim ite d natur e o f fed eral m alic ious p ros ecut ion clai ms ).
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(same). Therefore, the district court properly dismissed this claim as barred by state immunity. 5 Finally, Plaintiff-Appellant Humphreys argue s t hat the district court should not have dismissed his claim fo r injunctive relief. In this claim, Humphreys seeks an injunction barring the state from re-indicting him for the

same offenses. Humphreys, however, lacks sta n d i n g 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 ( 5 t h C i r
. 2011) (same). Indeed, it is textbook law that “[p]ast exposure to i l l e g al conduct does not in itself show a present case or controversy regarding injunctive relief

. . . . ” O’Shea v. Littleton , 414 U.S. 488, 495 ( 1 9 7 4 ) ; s e e a ls o Bauer v. Tex a s , 341 F.3d 352, 358 (5th Cir. 2003) (denying prospective relief where plaintiff sought order barring future proceeding s w h e r e there was no threat of future suit); Johnson v. Moore , 958 F.2d 92, 94–95 (5th Ci r
. 1992) (same). Here, Humphreys lacks sta n d ing 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 d i s t r i ct court also properly dismissed this claim. 6

Hu mp hreys als o conf

usi ngly me ntio ns his clai m for inte ntio nal or reck les s inflict ion 5 of em oti onal dis tre ss in his brie fing. To the exten t that Hu mp hreys is arguing that dis mi ss al of th is cl aim was inapp rop riat e, the argum ent is wa ived beca use it was not pre se nted to the dis tri ct cour t.

In dis mi ss ing this clai m, the dist ric t cour t reli ed on Younge r abs tent ion. Ho we ver, 6 beca use Plaint iff-Ap pel lant Hu mp hreys doe s not, mo re fund ame ntall y, even have st andi ng to
sue for injunct ive reli ef, we need not det erm ine wh ethe r Younge r abs tent ion app lies in this
cas e. See Ho we ry v. Al ls tate Ins. Co. , 243 F.3d 912, 919 (5t h Cir. 2001) (s tat ing that a fed eral
cour t mus t alw ays cons ide r its jur isd ict ion)

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C O N C L U S I O N For the foregoing reasons, the judgment o f t h e district court is AFFIRMED.

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