IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

HENRY CATO, Jr. #2214123 §

VS. § CIVIL ACTION NO. 6:23cv448

O. PEDRO, et al. § 

 

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Henry Cato, Jr., an inmate of the Texas Department of Criminal Justice (TDCJ),

proceeding pro se and in forma pauperis, filed this complaint under 42 U.S.C. § 1983 complaining 

of alleged violations of his constitutional rights in the TDCJ’s Coffield Unit. The lawsuit was 

referred to the undersigned United States Magistrate Judge for findings of fact, conclusions of law, 

and recommendations for the disposition of the case. The operative complaint is Plaintiff’s 

Amended Complaint, in support of which Plaintiff submitted several exhibits and additional 

statements. (Dkt. ##8–10, 12.)

Defendant O. Pedro is the only remaining Defendant following the Court’s sua sponte

dismissal of all other Defendants and claims. (Dkt. #22.) Defendant Pedro moves to dismiss this 

case on the grounds that it was filed after expiration of the time provided by the applicable the 

statute of limitations. (Dkt. #24.) Plaintiff has not responded to that motion. For reasons explained 

below, the undersigned recommends that the motion be denied.

I. Plaintiff’s Pleading

Plaintiff alleges in pertinent part in his amended complaint that, while he was reaching for 

a face mask in an attempt to comply with Defendant Pedro’s order to put on a mask, Defendant 

Pedro tackled Plaintiff, hitting his head hard enough to knock him out. (Dkt. #8 at 4.) Plaintiff 

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alleges that he was awakened with a blow to his temple by Defendant’s radio. (Id.) He says Pedro 

took several swings at him with the radio, and that he suffered a concussion from the incident. (Id.

at 6.) In his supporting documents, which the Court construes to be part of his amended complaint, 

Plaintiff states several times that this incident took place on December 17, 2020. (Dkt. #9 at 1; 

Dkt. #10 at 1; Dkt. #12 at 1.)

Three of those documents are TDCJ Step 1 Grievances about the incident, which are dated 

December 22, 2020, January 6, 2021, and January 18, 2021. (Dkt. #10.) All three grievances were 

returned to Plaintiff the day they were received, the latter two being marked “not grievable” 

because a disciplinary case related to the incident had not yet been heard. (Id.)

II. Defendant’s Motion to Dismiss

Defendant moves to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. 

(Dkt. #24.) He points out that Plaintiff alleges the incident occurred on December 17, 2020, but he 

did not sign and submit his original pleading in this case until August 30, 2023, which is when it 

is deemed filed. (Id. at 1, 3; Dkt. #1 at 5.) And, perhaps anticipating that Plaintiff might claim that 

his injuries somehow delayed his filing, Defendant observes that the first of the grievances about 

the incident submitted by Plaintiff was signed by him on December 22, 2020, in which he was able 

to describe the alleged assault and name Defendant as the perpetrator. (Id. at 3–4; Dkt. #10 at 1–

2.)

Accordingly, Defendant asserts that Plaintiff’s two-year limitations period under Texas law 

expired no later than December 22, 2022, rendering his August 2023 pleading time-barred. (Dkt. 

#24 at 2, 4.) Defendant seeks dismissal on that basis. (Id. at 4.)

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III. Legal Standards

The Fifth Circuit has observed that motions to dismiss under Rule 12(b)(6) are “viewed 

with disfavor and rarely granted.” See Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011). Such 

motions are generally evaluated on the pleadings alone. See Jackson v. Procunier, 789 F.2d 307, 

309 (5th Cir. 1986). However, exhibits to a pleading are deemed to be part of the pleading. Gen. 

Elec. Cap. Corp. v. Posey, 415 F.3d 391, 398 n.8 (5th Cir. 2005).

Federal Rule of Civil Procedure 12(b)(6) permits dismissal if a plaintiff “fails to state a 

claim upon which relief may be granted.” A complaint fails to state a claim upon which relief may 

be granted where it does not allege sufficient facts which, taken as true, state a claim which is 

plausible on its face and thus does not raise a right to relief above the speculative level. See 

Montoya v. FedEx Ground Packaging Sys. Inc., 614 F.3d 145, 149 (5th Cir. 2010) (citing Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim has factual plausibility when the pleaded 

factual content allows the court to draw reasonable inferences that the defendant is liable for the 

misconduct alleged. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Hershey v. Energy Transfer 

Partners, L.P., 610 F.3d 239, 245 (5th Cir. 2010). This plausibility standard is not akin to a 

probability standard; rather, the plausibility standard requires more than the mere possibility that 

the defendant has acted unlawfully. Twombly, 550 U.S. at 556 (emphasis supplied). 

Although all well-pleaded facts are taken as true, the district court need not accept as true 

conclusory allegations, unwarranted factual inferences, or legal conclusions. See Whatley v. Coffin, 

496 F. App’x 414, 2012 WL 5419531 (5th Cir. Nov. 7, 2012) (citing Plotkin v. IP Axess Inc., 407 

F.3d 690, 696 (5th Cir. 2005)). Crucially, while the federal pleading rules do not require “detailed 

factual allegations,” the rule does “demand more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading offering “labels and conclusions” or a 

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“formulaic recitation of the elements of a cause of action” will not suffice, nor does a complaint 

which provides only naked assertions that are devoid of further factual enhancement. Id. Pro se

plaintiffs are held to a more lenient standard than are lawyers when analyzing a complaint, but pro 

se plaintiffs must still plead factual allegations that raise the right to relief above the speculative 

level. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016). 

In reviewing a motion to dismiss under Rule 12(b)(6), a district court is to take as true all 

material allegations in the complaint and construe them in the light most favorable to the nonmoving party. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 

1050 (5th Cir.1982). The moving party has the burden under a Rule 12(b)(6) motion to dismiss. 

See Philips N. Am., LLC v. Image Tech. Consulting, LLC, 22-CV-0147, 2022 WL 17168372, at *7 

(N.D. Tex. Nov. 21, 2022).

IV. Discussion and Analysis

There is no federal statute of limitations for 42 U.S.C. § 1983 actions; the relevant statute 

of the forum state furnishes the limitations period—but federal law determines the date the accrual 

commences. See Owens v. Okure, 488 U.S. 235 (1989). The statute of limitations in Texas for 

section 1983 actions is two years, as claims under section 1983 are governed by Texas’s two-year, 

personal-injury limitations statute. See Helton v. Clements, 832 F.2d 332, 334 (5th Cir. 1987) 

(“Civil rights actions brought under 42 U.S.C. §§ 1981, 1983, 1985, and 1988 are deemed 

analogous to Texas tort actions, and therefore, the applicable limitations period is ... two years.”); 

see also Wade v. City of Dallas, 2018 WL 3966358 *1-2 (N.D. Tex. July 16, 2018) (citing and 

quoting Helton, 832 F.3d at 334). Plaintiff has been given the benefit of the prison mailbox rule as 

to the filing of his original complaint. In Houston v. Lack, 487 U.S. 266 (1988), the Supreme Court 

established the prison “mailbox rule” and held that a pro se prisoner’s complaint is deemed to be filed 

on the date that the prisoner submits the pleading to prison authorities to be mailed. Id. at 276; see also 

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Spotville v. Cain, 149 F.3d 374, 376 (5th Cir. 1998) (per curiam) (holding that a pro se prisoner’s 

§ 1983 complaint is filed as soon as the pleadings have been deposited into the prison mail system). 

The Fifth Circuit has stated that “the limitations period begins to run ‘the moment the 

plaintiff becomes aware that he has suffered an injury or has sufficient information to know that 

he has been injured.” See Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001) (internal 

citation and quotations omitted); Shelby v. City of El Paso, Tex., 577 F. App’x 327, 331-32 (5th 

Cir. 2014) (per curiam) (“The standard in § 1983 actions provides ‘that the time for accrual is when 

the plaintiff knows or has reason to know of the injury which is the basis of the action.’”) (quoting 

Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989)).

The equitable tolling principles of the forum state control in Section 1983 cases. KingWhite v. Humble Indep. Sch. Dist., 803 F.3d 754, 764 (5th Cir. 2015). To the extent that Plaintiff 

would assert that his injuries prevented him from timely filing his complaint, under Texas law, a 

physical limitation is not a basis to toll the statute of limitations. See Tex. Civ. Prac. & Rem. Code

Ann. § 16.001(a) (defining legal disability as a person younger than 18 or of unsound mind); see 

Ruiz v. Conoco, Inc., 868 S.W.2d 752, 755–56 (Tex. 1993) (describing legal disability based on 

unsound mind, none of which included physical impairment). Moreover, as Defendant correctly 

observed, any injuries Plaintiff suffered did not prevent him from being able to know and describe 

what had happened or identify the perpetrator by December 22, 2020. Accordingly, Plaintiff’s 

injuries would not be a basis for equitable tolling in this case.

However, the Fifth Circuit has held that, because the PLRA requires a prisoner to first 

exhaust his administrative remedies, a prisoner is entitled to equitable tolling of the applicable 

limitations period in civil rights cases filed pursuant to 42 U.S.C. § 1983. Clifford v. Gibbs, 298

F.3d 328, 333 (5th Cir. 2002); Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999); Pedder v. 

Marquez, No. CV H-21-0494, 2021 WL 1669599, at *2 (S.D. Tex. Apr. 28, 2021), aff’d, No. 21-

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20305, 2022 WL 1773363 (5th Cir. June 1, 2022) (“When a civil rights lawsuit is brought by an 

incarcerated person the statute of limitations is tolled during the time that the plaintiff spent 

exhausting available administrative remedies.”). The exhibits to Plaintiff’s amended complaint 

clearly establish that he began the TDCJ’s administrative remedies process, but Defendant has not 

established whether or when that process concluded or otherwise addressed this tolling issue. And 

this is despite Defendant’s own reliance on one of the grievances to establish when Plaintiff’s 

cause of action accrued. See State Farm Mut. Auto. Ins. Co. v. Misra, 658 F. Supp. 3d 362, 371 

(W.D. Tex. 2023) (finding no basis not to consider complaint’s exhibits where “[b]oth sides refer 

to the exhibits”).

It is Defendant’s burden in his motion to establish that Plaintiff’s filing was untimely. But, 

making all inferences from the amended complaint and its exhibits in Plaintiff’s favor, it appears 

possible that Plaintiff is entitled to some amount of tolling of the limitations period from his efforts 

to exhaust administrative remedies, and that the extent of that tolling cannot be determined from 

the current record. Having failed to address that issue, which is fairly raised by Plaintiff’s pleading 

and supporting documents, Defendant has failed to carry his burden. See id. (explaining that 

moving party’s “conclusory statements [may be] insufficient to support dismissal under Rule 

12(b)(6), especially when the movant disregards relevant portions of the operative pleading”).

V. Conclusion

For the reasons explained above, Defendant Pedro’s motion should be denied without 

prejudice to his ability to seek summary judgment on the same issue.

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RECOMMENDATION

Accordingly, the undersigned recommends that Defendant’s motion to dismiss (Dkt. #24) 

be DENIED without prejudice to his ability to raise the limitations defense again with the evidence 

required to establish when the tolling attributable to Plaintiff’s exhaustion of administrative 

remedies ended.

Within fourteen (14) days after receipt of the Magistrate Judge’s Report, any party may 

serve and file written objections to the findings and recommendations contained in the Report.

A party’s failure to file written objections to the findings, conclusions and 

recommendations contained in this Report within fourteen days after being served with a copy 

shall bar that party from de novo review by the district judge of those findings, conclusions and 

recommendations and, except on grounds of plain error, from appellate review of unobjected-to 

factual findings and legal conclusions accepted and adopted by the district court. Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).

So ORDERED and SIGNED this 13th day of May, 2024.

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