IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Defendants-Appellees City of Ganado, Ganado

Police Department, Chief Norman Glaze, Officer Rodney Roberson, and other

United States Court of Appeals

Fifth Circuit

F I L E D

March 26, 2012

Lyle W. Cayce

Clerk

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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unknown officers ofthe GanadoPolice 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 statelaw 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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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. On appeal, Humphreys argues that 1

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. The 2

Plaintiff-Appellant Humphreys later filed a motion for a new trial under Federal Rule 1

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.

The district court analyzed the state and federal claims for excessive force, assault 2

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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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). Thus, the statute of limitations 3

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 statelaw 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

Although repeatedly citing Monell v. Department of Social Services, 436 U.S. 658 3

(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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below. Thus, because Humphreys only brings a state malicious prosecution 4

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)

In his complaint Humphreys never alleges a claim for malicious prosecution under

4

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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(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

Humphreys also confusingly mentions his claim for intentional or reckless infliction 5

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.

In dismissing this claim, the district court relied on Younger abstention. However, 6

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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CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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