IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

FRED SCOTT, §

(TDCJ #907987) §

 § CIVIL ACTION NO.4:05-CV-437-Y VS. 

§

 §

TARRANT COUNTY §

COMMISSIONERS, et al. §

 OPINION and ORDER OF DISMISSAL UNDER 28 U.S.C. §§ 1915A(b)(1),

 and UNDER 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) 

 (With special instructions to the clerk of Court)

Plaintiff Fred Scott, a prisoner presently housed at the Texas

Department of Criminal Justice (TDCJ), Corrections Institutions

Division’s Price Daniel Unit, was permitted by the magistrate judge

to proceed herein pursuant to 28 U.S.C. § 1915, with the filing fee

to be collected as required by the Prison Litigation Reform Act

(PLRA). Scott’s complaint under 42 U.S.C. § 1983 names as defendants each Tarrant County Commissioner: namely Dionne Bagsby, Marti

Van Ravensway, Glen Whitley, J.D. Johnson, and G.K. Meanins; as

well as Tim Curry, District Attorney, Tarrant County, Texas;

District Judge Thornton, former Judge, 372nd Judicial District

Court, Tarrant County, Texas; Don Carpenter, former Sheriff,

Tarrant County, Texas; David Williams, former Sheriff, Tarrant

County, Texas; and private attorney Jack Strickland. (Compl. Style;

¶ IV(B).) Except for Jack Srickland, Scott has named each defendant

in an official capacity only. (Compl. ¶ IV(B); V.) 

 

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1See Scott v. State, 734 S.W. 2d 756, 757-58 (Tex.App.-Fort Worth 1987,

writ refused).

2

On January 5, 2000, a jury found Fred Scott guilty of

possession with intent to deliver one gram but less than four grams

of heroin and possession with intent to deliver less than one gram

of cocaine. (Memorandum in Support of Complaint--January 5, 2000,

Judgment in cause number 0734466D–attached as an exhibit.) In this

case, Scott complains of the alleged actions of defendants

associated with a prior conviction in 1991, and the use of that

conviction to enhance his sentence in 2000. (Compl. § V; Memorandum

in Support 1-10.) Scott alleges that in 1987, the Court of Appeals

of Texas, Second District, reversed a judgment revoking his

probation on a charge of theft of property of value less than

$750.00.1 (Compl. § V, Memorandum at 3-4.) Scott alleges that the

Tarrant County Commissioner defendants had a policy in place that

allowed Sheriff Carpenter and later Sheriff Williams to keep him

incarcerated until another judgment was rendered against him in

case number 0270723D on June 14, 1991. (Compl. § V, Memorandum at

3.) Scott thus complains that he was the victim of malicious

prosecution and was falsely imprisoned in the early 1990s, and also

complains that cause number 02707230 was not validly used as a

habitual count to enhance the later conviction in January 2000.

(Compl. ¶ V.) Scott seeks a declaratory judgment as well as

monetary damages. (Compl. Relief § VI.)

 

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2Neitzke v. Williams, 490 U.S. 319,328 (1989). Section 28 U.S.C. § 1915(e)

requires dismissal not only when an allegation of poverty is untrue or the action

is frivolous or malicious, but also when “the action . . . fails to state a

claim on which relief may be granted; or seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C.A. § 1915(e)(2)(A) and

(B)(West Supp. 2005). 

3See 28 U.S.C.A. § 1915(e)(2)(West Supp. 2005); Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th

Cir. 1990)(discussing authority to dismiss at any time under prior § 1915(d)).

4See 28 U.S.C.A. § 1915A(a)(West Supp. 2005).

5See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).

6Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).

3

 A complaint filed in forma pauperis that lacks an arguable

basis in law should be dismissed under 28 U.S.C. § 1915.2 Under 28

U.S.C. § 1915(e)(2)(B), a district court retains broad discretion

in determining at any time whether an in-forma-pauperis claim

should be dismissed.3 Furthermore, as a part of the PLRA, Congress

enacted 28 U.S.C. § 1915A, which requires the Court to review a

complaint from a prisoner seeking relief from a governmental entity

or governmental officer or employee as soon as possible after

docketing.4 Consistent with § 1915A is prior case law recognizing

that a district court is not required to await a responsive

pleading to conduct its § 1915 inquiry.5 Rather, § 1915 gives

judges the power to “dismiss a claim based on an indisputably

meritless legal theory.”6 After review and consideration of Scott’s

claims in this suit, the Court finds that they must be dismissed

under the authority of 28 U.S.C. §§ 1915A and 1915(e)(2)(B).

 

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7 See Wilson v. Garcia, 471 U.S. 261, 273-76 (1985)(state statute of

limitations period for personal-injury actions applies to all claims under 42

U.S.C. § 1983).

8See Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994)(noting that

district courts in Texas must use Texas's general two-year, personal-injury

limitations period); see TEX. CIV. PRAC. & REM. CODE 16.003(a)(Vernon 2002)

(Texas’s two-year, personal-injury limitations statute).

9See Harris v. Hegman, 198 F.3d 153, 156 (5th Cir. 1999); see also Moore,

30 F.3d at 620, citing Gartrell V. Gaylor, 981 F.2d 254, 256 (5th Cir.1993).

10See Harris, 198 F.3d at 157; see also Burrell v. Newsome, 883 F.2d 416,

418 (5th Cir. 1989).

11See Harris, 198 F.3d at 157, citing Jackson v. Johnson, 950 F.2d 263, 265

(5th Cir. 1992) and Burrell, 883 F.2d at 418.

4

The Court first notes that all of Plaintiff’s claims are barred

by the applicable statute of limitations. The Supreme Court has

held that all § 1983 actions are governed by the statute of

limitations for personal-injury actions for the state of suit.7 In

Texas, the applicable limitations period is two years.8 A district

court may dismiss claims sua sponte under § 1915 where it is clear

from a review of the complaint that the alleged claims are barred

by the applicable statute of limitations.9

Accrual of a claim under § 1983 is determined by federal law,10

under which a claim generally accrues when a plaintiff knows or has

reason to know of the injury giving rise to the cause of action.11

Scott complains of events in 1987, 1991, and 1994, and also raises

challenges to an enhancement to his conviction in January 2000.

Since Scott did not file this suit until July 2005, his claims

asserted under 42 U.S.C. § 1983 are too late: the applicable twoyear statute of limitations already had expired on all of his

 

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5

potential claims several years prior to the time Scott filed suit.

Accordingly, the complaint must be dismissed under 28 U.S.C. §§

1915A(b)(1) and 1915(e)(2)(b)(i) and (ii).

An alternative basis for dismissal of Scott’s claims against

defendants Tim Curry, Judge Thornton, Jack Strickland, and Don

Carpenter, is that they are virtually identical to claims already

dismissed as frivolous by this Court. Scott previously filed some

of the same claims asserted in this action in Scott v. Tim Curry,

et al., 4:01-CV-916-Y, a copy of which is attached hereto as Exhibit

A. That action was dismissed under authority of 28 U.S.C. §§ 1915A

and 1915(e)(2)(B) on the basis that Scott’s official-capacity claims

were either barred by Eleventh Amendment immunity or were not

supported by sufficient facts to state such a claim, and alternatively, were barred by the doctrine of Heck v. Humphrey, 512 U.S.

477 (1994). 

In reviewing a similar multiple-suit-filing scenario, the Court

of Appeals for the Fifth Circuit concluded that there was no abuse

of discretion in a district court’s determination that an in-formapauperis action identical to one previously dismissed may be

dismissed as frivolous or malicious:

[W]e have dismissed an appeal as frivolous because it

involved a duplicative action arising from the same

series of events and alleging many of the same facts as

an earlier suit, concluding that “repetitious litigation

of virtually identical causes of action is subject to

dismissal under 28 U.S.C. § 1915(d) as malicious.” See

Robinson v. Woodfork, No. 86-3735 (5th Cir. May 22,

1987)(unpublished order)(citing McCullough v. Morgan, No.

 

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12Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)(other citations

omitted). 

6

85-2022 (5th Cir. July 3, 1985) (unpublished order) and

Hill v. Estelle, 423 F. Supp. 690 (S.D.Tex. 1976)). Other

courts have also held that an IFP complaint that merely

repeats pending or previously litigated claims may be

considered abusive and dismissed under the authority of

section 1915(d).12 

Because Scott’s claims against Curry, Thornton, Carpenter, and

Strickland are duplicative of an action already dismissed as

frivolous in this the Northern District of Texas, such claims must

be dismissed under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i) and

(ii). 

 Therefore, for the alternative reasons set forth above, all

of plaintiff Fred Scott’s claims are hereby, DISMISSED WITH

PREJUDICE to their being refiled pursuant to 28 U.S.C. § 1915A(b)(1)

and, alternatively, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and

(ii).

 SIGNED October 26, 2005.

 

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