*Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-10419

Summary Calendar

WILLIE JAMES WASHINGTON,

Plaintiff-Appellant,

VERSUS

CITY OF LUBBOCK; LUBBOCK CTY TX, Sheriff of;

TRAVIS WARE; JENNIFER BENNETT; UNKNOWN JUDGE, 364th

State Court District Judge; UNKNOWN, Lubbock Police Officer;

UNKNOWN, Lubbock City Police Officer; BRADLEY S. UNDERWOOD,

364th District Court Judge,

Defendants-Appellees.

Appeal from the United States District Court

For the Northern District of Texas

(5:95CV00060)

August 25, 1995

Before THORNBERRY, DAVIS, AND SMITH, Circuit Judges.

PER CURIAM:*

Appellant, Willie James Washington, is an inmate currently

incarcerated in the New Mexico state prison system. He appeals the
 

1 Complaints based on Texas' speedy trial act must fail

because the statute, Tex. Code Crim. Proc. Ann. art. 32A.02, was

stuck down as violative of the state constitution's separation of

powers doctrine. Meshell v. State, 739 S.W. 2d 246 (Tex.Crim.App.

1987).

2

dismissal of his pro se, in forma pauperis civil rights action. We

will affirm.

BACKGROUND

Washington is presently imprisoned on charges unrelated to the

instant suit. In this complaint he asserted the defendants

violated his civil rights by falsely arresting and imprisoning him

in December of 1989 on charges of forgery, which he contends were

dismissed in 1995. He complained that Defendant Keesee wrongfully

failed to prevent his imprisonment from extending past the "sixmonth speedy trial period."1 In addition, Washington alleged that

Judge Underwood and assistant district attorney Bennett, with

defendant Ware's knowledge, wrongfully issued a detainer against

him in December 1994 while he was imprisoned in New Mexico.

The district court determined that Washington's claims

regarding his 1990 incarceration in the Lubbock County Jail were

barred by limitations, and that Judge Underwood and the two

prosecutors were absolutely immune from liability in connection

with issuance of the detainer. The court dismissed the suit as

frivolous pursuant to 28 U.S.C. § 1915(d), holding these claims
 

2 The district judge noted that in 1990 alone, Washington

filed six suits in the northern district, unsuccessfully attempted

to intervene in another, and filed a writ of mandamus and an

interlocutory appeal in this Court.

3

were malicious and warning Washington that he would face sanctions

if he filed another frivolous complaint.2

Discussion

An in forma pauperis complaint may be dismissed under

§ 1915(d) if the district court finds the action is frivolous or

malicious. Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993).

This Court reviews such a dismissal under an abuse of discretion

standard. Ibid.

On appeal Washington argues that Judge Underwood enjoyed no

immunity because he acted without subject matter jurisdiction to

issue the detainer since the five-year statute of limitations had

run prior to its issuance. We disagree. Except in the clear

absence of jurisdiction, a judge is not deprived of jurisdiction

because his action was done in error, maliciously or in excess of

his authority. Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct.

1099, 1104-05 (1978). Therefore if Judge Underwood merely acted in

excess of his authority, he would still have had subject-matter

jurisdiction and thus was protected. Malina v. Gonzales, 994 F.2d

1121, 1125 (5th Cir. 1993).

The Texas Legislature has placed no limitation on a district

judge's power to issue a state detainer. See Tex. Code Crim. Proc.

Ann. art. 51.14. In addition, since the statute of limitations for
 

3 The district judge also noted that because Washington was

indicted in state court, his false imprisonment claim is meritless.

 

4 Because there is no statute of limitations for civil rights

actions, the federal court gives effect to the forum state's

tolling provisions. Gartrell v. Gaylor, 981 F.2d 254, 256 (5th

Cir. 1993). The Texas personal injury limitations period of two

years applies to Washington's claims of false arrest and

imprisonment. Ibid.

4

forgery is ten, not five years, see Tex. Code Crim. Proc. Ann. art.

12.01(2)(c), then it was perfectly permissible for Judge Underwood

to issue a detainer because the arrest and incarceration occurred

in 1989, and the detainer was issued five years later in 1994.3

Judge Underwood was not acting in the absence of jurisdiction and,

therefore, the district court did not err in determining that he

was immune from suit.

The district court was also correct in holding the state

prosecutors were immune from liability. Prosecutors are absolutely

immune from a suit for damages where acts complained of are those

performed solely within the scope of their official duties. See

Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991). Immunity

applies to acts within the judicial phase of criminal proceedings,

even if the prosecutor acted maliciously, wantonly, or negligently.

Rykers v. Alford, 832 F.2d 895, 897 (5th Cir. 1987).

As to the limitations issue, the district court correctly held

that Washington's complaints regarding his incarceration were timebarred.4 In federal court a cause of action accrues when the

plaintiff knows or has reason to know of the injury which forms the

basis of the action. Gartrell v. Gaylor, 981 F.2d 254, 257 (5th

Cir. 1993). A cause of action for a claim of false imprisonment
5

presumably begins to accrue after the individual has been released.

See Donaldson v. O'Connor, 493 F.2d 507, 529 (5th Cir. 1974),

judgment vacated on other grounds, 422 U.S. 563 (1975). The cause

of action began to accrue when Washington was released from prison,

on or about seven and one-half months from December 1989, and this

complaint was not filed until April 1995. His false arrest claim

was likewise time-barred because his allegations suggest that he

knew or should have known of his injury at the time of the arrest

in December 1989. See Pete v. Metcalf, 8 F.3d 214, 217 (5th Cir.

1993). Thus, these claims were properly dismissed pursuant to

§ 1915(d). Gartrell v. Gaylor, 981 F.2d at 256.

Conclusion

The district court did not abuse its discretion in dismissing

Washington's complaint as frivolous. Therefore, the judgment is

AFFIRMED.