GARWOOD, Circuit Judge:
Plaintiff-appellant Ellis D. Burrell (Burrell) appeals from the district court's dismissal of his section 1983 case against appellees-defendants Jimmy Newsome, et al. (Newsome). The district court adopted the United States Magistrate's report, which concluded that Burrell's suit was barred by Texas' two-year statute of limitations for personal injury suits. The district court also concluded that no equitable tolling provisions applied. We remanded the case to the district court for a determination of whether the notice of appeal was timely. The magistrate, after an evidentiary hearing, determined that Burrell's notice of appeal was untimely. The district court adopted the magistrate's findings of fact and conclusions of law.
Facts and Proceedings Below
On September 16, 1987, Burrell filed this civil rights suit, pro se and in forma pauperis, pursuant to 42 U.S.C. § 1983. Burrell named Chief of Police Jimmy Newsome, Officer Alfred J. Gillen, Jr., Officer Blanton, Officer Dyers, and Sergeant Williamson of the Port Arthur, Texas Police Department as defendants. Burrell alleges violations of his constitutional right to due process in that, in the summer of 1981, the defendants harassed him on numerous occasions prior to, during, and after his arrest on July 23, 1981.
The district court referred the case to the magistrate for review. The magistrate concluded that Burrell's case was barred by Texas' two-year statute of limitations for personal injury actions. Tex.Civ.Prac. & Rem.Code Ann. § 16.003(a) (Vernon 1986). The magistrate further concluded that no equitable tolling provisions applied to Burrell's claims. The district court adopted the magistrate's report and on August 9, 1988, filed its opinion and its judgment dismissing the suit before service of process under 28 U.S.C. § 1915(d). The opinion and the judgment were entered on the docket on August 10, 1988. Burrell's notice of appeal was filed on September 19, 1988.
This Court thereafter remanded for a determination of whether the notice of appeal was timely filed under Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Lack holds that a notice of appeal by a pro se prisoner will be deemed timely filed when delivered to the prison mail system, rather than when actually filed with the court. Lack, 108 S.Ct. at 2385. On remand the magistrate, after an evidentiary hearing, found that Burrell, who was incarcerated, delivered his notice of appeal to the prison mail officials on September 9, 1989, thirty-one days after the district court judgment filing date of August 9, 1988. Thus, the magistrate concluded that Burrell's notice of appeal was untimely. The district court adopted the magistrate's report and forwarded the findings of fact and conclusions to this Court.
The magistrate and district court apparently overlooked the fact that while the district court's judgment was filed on August 9, 1988, it was not entered on the docket until August 10, 1988. The period for appeal begins to run from the date of entry of the judgment on the docket sheet, which in the instant case was August 10, 1988. See, e.g., United States v. Doyle, 854 F.2d 771, 772 (5th Cir.1988); Harcon Barge Co. v. D & G Boat Rentals, Inc., 746 F.2d 278, 282 (5th Cir.1984), reh'g en banc ordered as to Part III, reh'g otherwise denied, 760 F.2d 86 (5th Cir.1985), opinion en banc, 784 F.2d 665 (5th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). Burrell delivered his notice of appeal to the prison authorities on September 9, 1988, thirty days after the judgment was docketed. Therefore, in accordance with Lack, Burrell's appeal is timely. Lack, 108 S.Ct. at 2385.
The district court, sua sponte, applied the Texas two-year personal injury statute of limitations to bar Burrell's section 1983 claims. See Tex.Civ.Prac. & Rem.Code Ann. § 16.003(a) (Vernon 1986). While this Court generally will not consider an affirmative defense not raised below, we are not prevented from considering the defense where it is raised sua sponte by the district court. See, e.g., Baylor Univ. Medical Center v. Heckler, 758 F.2d 1052, 1057 n. 8 (5th Cir.1985).
Because there is no specified federal statute of limitations for section 1983 suits, federal courts borrow the forum state's general personal injury limitations period. See Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 582, 102 L.Ed.2d 594 (1989); Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir.1989). While the limitations period is determined by reference to state law, the standard governing the accrual of a cause of action under section 1983 is determined by federal law. See, e.g., Watts v. Graves, 720 F.2d 1416, 1423 (5th Cir.1983); Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir.1980). The standard 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.'" Listi, 611 F.2d at 1131 (quoting Cox v. Stanton, 529 F.2d 47, 50 (4th Cir.1975)); see, e.g., Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir.1988); Longoria v. Bay City, 779 F.2d 1136, 1138 (5th Cir.1986). Burrell's pleadings reveal that he was fully aware that he had suffered injury at the time the incidents occurred in 1981. In the absence of any tolling provision, Burrell's 1987 complaint was filed several years too late.
Burrell's main argument on appeal is that the statute of limitations should be tolled in his case pursuant to section 16.001 of the Texas Civil Practice and Remedies Code because he was imprisoned at the time he filed his complaint and he has been continuously incarcerated since his July 23, 1981 arrest. Tex.Civ.Prac. & Rem.Code § 16.001 (West Supp.1989) (as amended in 1987). The Supreme Court, in its recent opinion, Hardin v. Straub, 490 U.S. 536, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989), held that a federal court applying a state statute of limitations should give effect to the state's tolling provisions for prisoners. See Straub, 109 S.Ct. at 2003.
Section 16.001 of the Texas Civil Practice and Remedies Code, when enacted in 1985, provided as follows:
Section 16.001 was amended in 1987, and effective September 1, 1987, imprisonment is no longer considered a legal disability in Texas. See Acts 1987, 70th Leg., ch. 1049, § 56; Tex.Civ.Prac. & Rem.Code Ann. § 16.001 (West Supp.1989). However, another section of the 1987 amendatory act provides that if a period of limitations was tolled on August 31, 1987, because the person bringing the action was imprisoned, the limitations period for the action begins to run on September 1, 1987.
There are a few Texas appellate court decisions that pertain to Texas' prisoner tolling provision. In Blum v. Elkins, 369 S.W.2d 810 (Tex.Civ.App. — Waco 1963, no writ), the court held that the imprisonment of the plaintiff did not toll the statute of limitations because the plaintiff knew prior to incarceration of the facts underlying his claim and that he would have to file suit. Blum, 369 S.W.2d at 812-13 (citing Tex.Rev.Civ.Stat.Ann. art. 5535 (1925)). The period of limitations began to run at the time the prisoner knew of the injury prior to his incarceration, and it is well settled that "[o]nce the statute has commenced to run, it is not tolled by imprisonment." Id. (citing Tex.Rev.Civ.Stat.Ann. art. 5544 (1925)).
In Jenkins v. State, 570 S.W.2d 175 (Tex.Civ.App. — Houston [14th Dist.] 1978, no writ), the alleged injury occurred on March 9, 1974, while the plaintiff was imprisoned. The plaintiff was released from prison on September 9, 1974, and he filed his lawsuit relating to the March 9 incident on May 25, 1976. Id. at 177. The court held that the statute of limitations was tolled during the prisoner's incarceration and the period of limitations began to run upon the prisoner's release from confinement. Id. (citing Tex.Rev.Civ.Stat.Ann. art. 5535 (Supp.1978)). Thus, the prisoner's suit was timely filed within the two-year limitations period. Id.
Finally, in Johnson v. McLean, a Texas appellate court held that the protective provisions of the tolling statute did not apply where a prisoner timely filed his suit during his imprisonment but failed to obtain service of process for three years thereafter. Johnson, 630 S.W.2d 790, 791 (Tex.App. — Houston [1st Dist.] 1982, no writ) (discussing Tex.Rev.Civ.Stat.Ann. art. 5535). Under Texas law, filing of suit does not interrupt limitations unless diligence is exercised in procuring issuance and service of citation. Id. at 793. The court stated that
Subsequent to Johnson, a federal district court addressed the tolling issue. See Armon v. Jones, 580 F.Supp. 917, 921-22 (N.D.Tex.1983). The court summarized the Texas law on point and concluded that Texas' tolling statute operates to toll the statute of limitations where (1) the plaintiff is imprisoned, (2) the cause of action arises while the plaintiff is imprisoned, and (3) the plaintiff does not, while imprisoned, timely file a lawsuit relating to that cause of action and then claim the protection of the tolling provision after his suit is filed. Id. at 921. Thus, a prisoner who could have brought suit prior to imprisonment or who timely brings suit while imprisoned cannot later claim the protection of the tolling statute. Id. at 921-22. The Armon court went on to hold that the plaintiff satisfied the three criteria and, thus, the tolling provision operated in that case to toll the statute of limitations. Id. at 922 (applying Tex.Rev.Civ.Stat.Ann. art. 5535 (Vernon 1968)).
In another district court case, Winton v. Burton, 582 F.Supp. 1044 (E.D.Tex.1984), the prisoner filed suit on June 28, 1979. The prisoner claimed that four separate prison incidents had violated his civil rights.
In Winton, the plaintiff's fourth claim arose in January 1978, after his reincarceration. Plaintiff filed suit in June 1979, but he did not allege the fourth claim — which was against one of the defendants included in the suit as filed in June 1979 but related to a wholly different incident — until he filed a supplemental complaint in that suit on April 22, 1982, almost three years after successfully initiating the suit. Id. The Winton court, relying on Johnson, found that the tolling provision did not protect the plaintiff's fourth claim. Id. (citing Tex.Rev.Civ.Stat.Ann. art. 5535 (Vernon Supp.
As announced in Johnson, and reaffirmed in Winton, the primary purpose of the tolling provision is to "`protect a legally disabled party who has no access to the courts.'" Winton, 582 F.Supp. at 1050 (quoting Johnson, 630 S.W.2d at 793). The fact that the prisoner had successfully filed suit against the defendant in June 1979 demonstrated that he was not actually disabled by imprisonment. The prisoner in Winton, like the prisoner in Johnson, demonstrated that he could successfully bring suit against the defendant within the limitations period; therefore, he was not entitled to claim the protection of the tolling provision. See Johnson, 630 S.W.2d at 692; Winton, 582 F.Supp. at 1052.
This Court, in a brief per curiam opinion dealing with the Texas tolling provision, concluded that the district court erred in finding that the prisoner's claim was tolled by reason of his incarceration. Edmond v. De La Rosa, 835 F.2d 87, 87 (5th Cir.1988) (per curiam). The opinion did not recite the facts of that case, but it did cite both Johnson and Winton as support for its decision. Id. In reviewing matters of state law where there is no state supreme court decision on point, we follow the relevant appellate state court decisions "absent strong indication that the Texas Supreme Court would decide the issue differently." Mott v. Mitsubishi International Corp., 636 F.2d 1073, 1074 (5th Cir.1981); see also Birmingham Fire Ins. Co. v. Winegarden and Hammons, Inc., 714 F.2d 548, 550 (5th Cir.1983); Griffen, 706 F.2d at 650.
We find nothing in the Edmond decision to imply that we were departing from the principles articulated in the leading Texas appellate cases, even though we cited only to Johnson.See Edmond, 835 F.2d at 87. The Johnson-Winton exception to tolling under the pre-amendment section 16.001 applies where the prisoner has demonstrated his ability to timely resort to the courts, notwithstanding his imprisonment, by filing suit within the (untolled) limitations period against the defendant (or, quite possibly, against another defendant but on the same operative facts). But this exception does not simply eliminate all tolling under the pre-amendment section 16.001 (or its predecessors). Johnson is consistent with Jenkins and Blum, and Johnson clearly recognized the general rule under the Texas tolling provision — that statutes of limitations were tolled during incarceration. Johnson, 630 S.W.2d at 793; see also Armon, 580 F.Supp. at 921-22.
While the 1987 amendment to the Texas tolling provision removes the category of imprisonment as a legal disability, it allows for tolling until August 31, 1987, for prisoners' actions that would have been tolled prior to the amendment. Thus, it is still necessary to look to the Texas case law to determine if the period of limitations would have been tolled for Burrell as of August 31, 1987. See Tex.Civ.Prac. & Rem.Code Ann. § 16.001 (West Supp.1989) (as amended in 1987).
From the record it is clear that Burrell was incarcerated at the time he filed suit in September 1987, and he apparently had been continuously incarcerated since July 23, 1981. It is also clear that Burrell's suit has not been shown to be within the Johnson-Winton exception to tolling. There is nothing to indicate that during his incarceration Burrell ever previously sued any of the present defendants (or any other party in respect to the circumstances made the basis of any of the claims in the instant suit). Finally, it is plain that some, but not all, of Burrell's claims accrued while he was incarcerated.
The claims of harassment prior to arrest were known by Burrell at the time they occurred in June and July of 1981. The two-year limitations period began to run on those claims at that time, and the limitations period was not tolled by Burrell's subsequent incarceration. See Blum, 369 S.W.2d at 812. Accordingly, those claims are untimely, id., and were properly dismissed. However, Burrell's claims that arose during and following arrest, being that he was apparently continuously in custody after the time of his arrest on July 23, 1981, were not shown to be unprotected by the tolling provision for prisoners as of August 31, 1987.
Thus, for these later claims it is not shown that the statute of limitations was not tolled as of August 31, 1987, and that the limitations for those claims did not begin to run until September 1, 1987. See Tex.Civ.Prac. & Rem.Code Ann. § 16.001 (West Supp.1989) (as amended 1987). Because Burrell filed his suit on September 17, 1987, well within the two-year statute of limitations, those claims were not shown to be untimely. In light of the above discussion, the decision of the district court is reversed and remanded for further proceedings consistent with this opinion. We express no opinion on the substantive legal or factual merits (or lack thereof) of Burrell's timely claims.
REVERSED and REMANDED.
On July 23, 1981, Burrell claims he was out walking at night. After a long narrative regarding events that night, Burrell states that he was arrested for burglary. Burrell claims that his arm was bent behind his head and his face was forced "down on the hot hood of the patrol car."
Burrell also names one Shirley Jones, a private citizen (identified only as a worker at Pizza Inn), as a defendant. The basis for this claim, not separately addressed below, is unclear.
"(J) April 29, 1982 and May 11, 1982 — Evidentiary hearing on Defendants' Motion to Dismiss." Winton, 582 F.Supp. at 1047.
Burrell's motion for appointment of appellate counsel is denied. See Ulmer v. Chancellor, 691 F.2d 209, 212-213 (5th Cir.1982).