1 United States Court of Appeals,

Fifth Circuit.

No. 93-1941.

Summary Calendar.

Curtis Lynn MOORE, Plaintiff-Appellant,

v.

Lynn McDONALD, Hood County Deputy Sheriff, Defendant-Appellee.

Sept. 1, 1994.

Appeal from the United States District Court for the Northern

District of Texas.

Before JOLLY, WIENER and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Appellant, Curtis Lynn Moore, was arrested for possession of

a controlled substance and detained, and following the dismissal of

criminal charges, brought an in forma pauperis action against

appellee, Deputy Sheriff Lynn McDonald, for violation of his civil

rights under 42 U.S.C. § 1983 (1988). Moore alleged that McDonald

falsely stopped , detained, searched, and arrested him, and gave

perjured testimony at a pretrial suppression hearing. The district

court granted summary judgment for McDonald on the perjury claim

and later dismissed the remainder of Moore's claims as frivolous

under 28 U.S.C. § 1915(d) (1988). Moore appeals, arguing that the

district court erred in holding that: (1) McDonald has absolute

immunity to Moore's § 1983 perjury claim; (2) Moore's Fourth

Amendment claims are frivolous under § 1915(d); and (3) Moore must

pay court costs. We affirm the judgment on Moore's perjury and

Fourth Amendment claims, and the judgment imposing costs on Moore.1 Although the criminal charges arising from this incident

were dropped, Moore is confined by the Texas Department of

Criminal Justice for reasons unrelated to this proceeding.

2 I

On May 10, 1988, Deputy Sheriff McDonald stopped Curtis Lynn

Moore for a traffic violation in Hood County, Texas. After seeing

a large hunting knife on the dashboard of Moore's vehicle, McDonald

asked Moore and his passengers to exit the car. McDonald proceeded

to search the vehicle for other weapons and, after finding

contraband, arrested and detained Moore for possessio n of a

controlled substance. Moore filed a motion to suppress the

evidence found in McDonald's search. At the suppression hearing,

McDonald testified that the only reason for stopping Moore's

vehicle was the violation of a traffic law, and the district court

denied Moore's motion. However, the State dropped its criminal

charges against Moore on December 14, 1988, 1 because it learned

that McDonald had "potentially perjured himself at a pretrial

hearing." The written statements of a city police officer and a

Hood County jailer showed that Officer McDonald knew Moore was

driving the vehicle and did not stop him solely on the basis of a

traffic violation.

On November 19, 1990, Moore filed a § 1983 civil rights

action, alleging that McDonald unlawfully stopped, detained,

searched, and arrested him, and gave perjured testimony at the

pretrial suppression hea ring. Moore sought monetary damages in

excess of $160,00 0, equitable relief, attorney's fees, and court

costs.3

McDonald then moved for summary judgment. The district court

granted summary judgment on the perjury claim, stating that "§ 1983

does not authorize a claim for damages against a police officer for

allegedly giving perjured testimony." The district court relied on

Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2 d 96

(1983), where the United States Supreme Court held that police

officers are absolutely immune from § 1983 claims based on their

trial testimony. Id. at 326, 103 S.Ct. at 1110-11. However, the

district court de nied summary judgment as to Moore's Fourth

Amendment and false imprisonment claims.

McDonald subsequently filed another summary judgment motion

alleging that Moore's Fou r th Amendment and false imprisonment

claims were barred by the statute of limitations. The district

court denie d McDonald's motion, but dismissed Moore's i n forma

pauperis action sua sponte, because it was frivolous, under 28

U.S.C. § 1915(d). The district court reasoned that Moore's Fourth

Amendment and false imprisonment claims accrued on May 10, 1988—the

date of Moore's arrest and the search of his car, more than two

y ears before Moore filed his action—and were barred by the

applicable statute of limitations. The district court then entered

final judgment for McDonald and ordered Moore to pay court costs.

Moore appeals, cont ending that: (1) McDonald does not have

absolute immunity to Moore's § 1983 perjury claim; (2) Moore's

Fourth Amendment claims were not ti me barred, and therefore not

frivolous, under § 1915(d); and (3) court costs should not be

borne by Moore.4 II

A

Moore argues that the district court erred by granting summary

judgment as to his perjury claim. In Briscoe, the United States

Supreme Court held that a police officer has absolute immunity from

§ 1983 perjury claims when testifying at a criminal trial. 460

U.S. at 326, 103 S.Ct. at 1110-11. However, the issue before this

court involves a police officer who allegedly perjured himself

during a pretrial suppression hearing. It is a question of first

impression in this Circuit whether a police o fficer's pretrial

suppression hearing t estimony is absolutely immune from § 1983

perjury claims. S ee Foster v. City of Lake Jackson, Tex., 813

F.Supp. 1262, 1266 (S.D.Tex.1993) (statin g that this Circuit has

not extended the privilege of absolute immunity to "witnesses who

testify in pretrial proceedings"), rev'd on other grounds, No. 93-

7196, 1994 WL 387970, --- F.3d ---- (5th Cir. July 27, 1994).

The Court in Briscoe, in determining that § 1983 did not

abrogate common law immunity, asserted that "[a] witness [at trial]

who knows that he might be forced to defend a subsequent lawsuit,

and perhaps to pay damages, might be inclined to shade his

testimony in favor of the potential plaintiff, to magnify

uncertainties, and thus to deprive the finder of fact of candid,

objective, and undistorted evidence." 460 U.S. at 333, 103 S.Ct.

at 1114. The result of such shaded testimony would be an

obstruction of "the paths which l ead to the ascertainment of

truth." S ee id. at 333, 103 S.Ct . at 1114 (quoting C alkins v.5

Sumner, 13 Wis. 193, 197 (1860)).

The reason for gr anting absolute immunity to a witness

against claims arising from testimony "applies with equal force in

both trial and [adversarial] pretrial settings." H olt v.

Castaneda, 832 F.2d 123, 125 (9th Cir.1987), cert. denied, 485 U.S.

979, 108 S.Ct. 1275, 99 L.Ed.2d 486 (1988). "Whether testifying at

trial or in a pre trial proceeding, a witness who knows he may be

subjected to costly and time-consum ing civil litigation for

offering testimony that he is una ble to substantiate may

consciously or otherwise shade his testimony in such a way as to

limit potential liability." I d. Because of such natural

tendencies to shade testimony, w itness immunity "is afforded to

encourage complete disclosure in judicial proceedings as a means

for ascertaining the truth, and, because of its common law roots,

is necessarily limited to witnesses in judge-supe rvised trials."

Krohn v. United States, 742 F.2d 24, 31 (1st Cir.1984). "The

thought is that witnesses should be encouraged to tell all they

know without fearing reprisal , because the tools of the judicial

process—rules of evidence, cross-examination, the fact-finder, and

the penalty of (criminal) perjur y—will be able to uncover the

truth." Williams v. Hepting, 844 F.2d 138, 142 (3rd Cir.), cert.

denied, 488 U.S. 851, 109 S.Ct. 135, 102 L.Ed.2d 107 (1988).

Because these truth-finding tools of the judicial process are

present at adversarial pretrial suppression hearings, "[w]e see no

principled basis for distinguishing between the [adversarial]

pretrial proceedings and the trial on the meri ts in determining6

whe ther absolute immunity should be granted to a police officer

witness." Holt, 832 F.2d at 125.

Furthermore, "[t]he great weight of lower court authority

holds that the functional approach dictates that absolute witness

immunity applies to testimony given at adversarial pretrial

criminal proceedings." Martin A. Schwartz & John E. Kirklin,

Section 1983 Litigation: Claims, Defenses, and Fees § 9.10, at 497

(2d ed. 19 91); see Daloia v. Rose, 849 F.2d 74, 76 (2nd Cir.),

cert. denied, 488 U.S. 898, 109 S.Ct. 242, 102 L.Ed.2d 231 (1988)

(holding that absolute witness immunity applies to an adversarial

pretrial suppression hearing); W illiams, 844 F.2d at 141

(extending "absolute immunity doctrine to a witness at the pretrial

stage of the judicial process"); H olt, 832 F.2d at 127

("[W]itnesses who testify in court at adversarial pretrial hearings

are absolutely immune from liability under section 1983 for damages

allegedly caused by their testimony.").

We have held that police officers do not have absolute

immunity from § 1983 claims where they perjure themse lves at

pretrial probable cause hearings. W heeler v. Cosden Oil and Chem.

Co., 734 F.2d 254, 261 (5th Cir.), modified on other grounds, 744

F.2d 1131 (1984). In W heeler, we noted the "absence of

cross-examination at probable cause hearings, " and asserted that

" the policy considerations applicable to ... testimony at a

probable cause hearing differ substantially from those relevant to

... testimony at a probable trial." I d. (quoting Briscoe, 460 U.S.

at 351, n. 10, 103 S.Ct. at 1124, n. 10 (Marshall, J.,7

dissenting)). Testimony at adversarial pretrial suppression

hearings is distinguishable from testimony at nonadversarial

probable cause hearings because "[i]n adversarial pretrial

proceedings, as in trials, the witnes s testifies in court, under

oath, under the supervision of the presiding judge and is subject

to criminal prosecution for perjury." H olt, 832 F.2d at 125.

Therefore, our determination in Wheeler does not call into question

our conclusion that Briscoe applies to pretrial suppression

hearings.

Moore's pretrial sup p ression hearing was adversarial in

nature. McDonald was under oath, appeared before a judge on the

record, was cross-examined by Moore, and was subject to the penalty

of criminal perjury. Because McDonald's testimony at the

suppression hearing was subject to the same procedural safeguards

as trial testimony, we hold that McDonald's testimony is absolutely

immune from Moore's § 1983 claim.

Finally, in his brief Moore relies on Anthony v. Baker, 955

F.2d 1395 (10th Cir.1992), where the court held that "in the

context of a § 1983 claim for malicious prosecution, a complaining

witness is not absolutely immune for testimony given in a pre-trial

setting i f that testimony is relevant to the manner in which the

complaining witness initiated or perpetrated the prosecution." I d.

at 1401. However, Anthony is not controlling, because Moore does

not allege a claim for malicious prosecution. Lack of probable2 Probable cause means "the existence of such facts and

circumstances as would excite the belief, in a reasonable mind,

acting on the facts within the knowledge of the prosecutor, that

the person charged was guilty of the crime for which he was

prosecuted." Pendleton v. Burkhalter, 432 S.W.2d 724, 727

(Tex.Civ.App.—Houston [1st Dist.] 1968, writ ref'd n.r.e.).

3 See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-

96, 30 L.Ed.2d 652 (1972).

8 cause to prosecute is an element of a malicious prosecution case. 2

See Seven Elves, Inc. v. Eskenazi, 704 F.2d 241, 245 (5th

Cir.1983); M artin v. Thomas, 973 F.2d 449, 457 (5th Cir.1992).

Even construing Moore's complaint lib erally and focussing on the

facts alleged, we find no allegation that there was a lack of

probable cause to prosecute the action. We therefore find that

Moore has not asserted a claim for malicious prosecution.

B

In his pro se complaint, which we must construe libe rally, 3

Moore presented two theories for relief under the Fourth Amendment.

Moore's princ ipal allegation was that he was subjected to an

unreasonable stop because it was pretextual in nature, based on an

informant's tip, and not solely for the purpose of issuing a

traffic citation. Additionally, Moore alleged that the warrantless

search of his vehicle was unreasonable. He contended that after

Deputy McDonald confiscated the k nife, further search of the

vehicle was unnecessary because Moore was twenty feet away from the

vehicle, and, thus, unable to threaten or injure McDonald.

Moore argues that the district court erred in dismissing his

claims as frivolous under 28 U.S.C. § 1915(d) because they were not

filed wit hin the applicable limitations period. He asserts that9

the district court erred because it incorrectly determined the

accrual date of his claims.

We review § 1915(d) dismissals for an abuse of discretion.

Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir.1993) (citation

omitted). A federal court may dismiss a claim i n forma pauperis

"if satisfied that the action is frivolous or malicious." 28

U.S.C. § 1915(d) (1988). District courts may dismiss claims s ua

sponte under § 1915(d) where "it is clear from the face of a

complaint filed in forma pauperis that the claims asserted are

b arred by the applicable statute of limitations." G artrell, 981

F.2d at 256. Because there is no federal statute of limitations

for § 1983 claims, district courts use the forum state's personal

injury limitations period. I d. Texas' general personal injury

limitations period is two years. S ee T EX .C IV .P RAC

. & R EM .C ODE A NN

. §

16.003(a) (Vernon 1986).

The district court found that Moore's illegal search claim

accrued on the date of the allegedly unreasonable search, or when

Moore purportedly sustained h is injury—May 10, 1988. Therefore,

because Moore filed suit on November 19, 1990, the court dismissed

Moore's suit pursuant to § 1915(d) because the two-year statute of

limitations had run.

Although the Texas limitations period applies, federal law

governs when a § 1983 claim accrues, and "[u]nder federal law, a

cause of action accrues when the plaintiff knows or has reason to

know of the injury which is the basis of the action." G artrell,

981 F.2d at 257. "The statute of limitations ... begins to run4 Of course, we express no opinion regarding whether

McDonald's search of Moore's vehicle actually amounted to a

constitutional violation.

10 when the plaintiff is in possession of the "critical facts that he

has been hurt and who has inflicted the injury....' " I d. (quoting

Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir.1980)). Moore

certainly possessed the "critical facts" concerning the allegedly

unreasonable search of the car on the day it occurred. Moore knew

that he was twenty feet away from the car, and unable to threaten

or harm Officer McDonald, when the c ar was searched. Thus, the

district c ourt correctly concluded that Moore's claim as to the

allegedly unreasonable search of the car accrued on May 10, 1988,

when he became "aware that he ha[d] suffered an injury or ha[d]

sufficient information to know that he ha[d] been injured." H elton

v. Clements, 832 F.2d 332, 335 (5th Cir.1987) (footnote omitted). 4

Moore also contends, however, that he was subjected to an

illegal pretextual stop in violation of the Fourth Amendment. In

United States v. Causey, 834 F.2d 1179 (5th Cir.1987) (en banc), we

held that "where poli ce officers are objectively doing what they

are legally authorized to do

... the results of their

investigations are not to be called in question on the basis of any

subjective intent with which they acted." I d. at 1184; s ee Scott

v. United Sta tes, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56

L.Ed.2d 168 (1978) ("[T]he fact that the officer does not have the

state of mind which is hypothecated by the reasons which provide

the legal justification for the officer's action does not

invalidate the action taken as long as the circumstan ces, viewed11

objectively, justify that action.") It is undisputed that Deputy

McDon ald, in stopping Moore for a traffic violation, was

objectively doing what he was legally authorized to do, whether he

was following a tip or not. Thus, even assuming arguendo that the

district court erred in d etermining the accrual date of Moore's

claim, we need not reach this issue because, under Causey, the

claim is without constitutional merit. We therefore find no abuse

of discretion by the district court. S ee Ali v. Higg s, 892 F.2d

438, 439 (5th Cir.1990) (affirming § 1915(d) dismissal for "reasons

different from those relied upon by the district court").

C

Moore also argues that the district court erred in ordering

that he pay court costs. He asserts that court costs should not

have been charged to him because he is proceeding in forma pauperis

and his complaint was timely filed. However, 28 U.S.C. § 1915(e)

(1988) provides that "[j]udgment may be rendered for costs at the

conclusion of the suit or action as in other cases...." § 1915(e)

af fords the courts "discretionary power" to render judgment for

costs at the end of the action. S ee Lay v. Anderson, 837 F.2d 231,

232 (5th Cir.1988) (stating that a frivolous appeal is not a

necessary condition to taxing costs against an i n forma pauperis

litigant). The fact that Moore's complaint was timely filed does

not establish an abuse of discretion. Moore's argument is without

merit.

III

For the foregoing reasons, we AFFIRM.12