Jones v. City of Bryan Texas, No. 4:2007cv03874 - Document 21 (S.D. Tex. 2008)
Court Description: MEMORANDUM AND OPINION entered GRANTING Defts. 8 First MOTION to Dismiss Plaintiff's Claims Under Federal Rule of Civil Procedure 12(b)(6)First MOTION to Dismiss Plaintiff's Claims Under Federal Rule of Civil Procedure 12(b)(6). Final judgment will be entered by separate order.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )
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y-day limitation period is strictly construed. Taylor, 296 F.3d at 379 (5th Cir. 2002) (citing Ringgold v. Nat’l Maint. Corp., 796 F.2d 769, 770 (5th Cir. 1986); Espinoza v. Missouri Pac. R.R. Co., 754 F.2d 1247, 1251 (5th Cir. 1985)). “Courts within this circuit have repeatedly dismissed cases in which the plaintiff did not file a complaint until after the ninety-day limitation period had expired.” Bowers v. Potter, 113 Fed. Appx. 610, 612 (5th Cir. 2004) (citing Butler v. Orleans Parish School Board, No. Civ. A. 00-0845, 2001 WL 1135616 (E.D. La. Sept.25, 2001)). The ninety-day period is subject to equitable tolling. The plaintiff bears “the burden of establishing a factual basis justifying tolling of the limitations period.” Bowers, 113 Fed. Appx. at 613 (citing Hood v. Sears Roebuck & Co., 168 F.3d 231 (5th Cir. 1999)).. Equitable tolling depends on whether the EEOC provided adequate notice of the complainant's right to sue; whether a motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon; whether the court itself has led the plaintiff to believe that he has done everything required; or whether affirmative misconduct on the part of the defendant lulled the plaintiff into inaction. St. Louis v. Tex. Worker's Comp. Comm'n, 65 F.3d 43, 47 (5th Cir. 1995) (citing Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984)). Jones filed this suit almost eleven months after receiving his right-to-sue letter, long after the ninety-day limitations period expired. Jones does not dispute that he filed suit more than ninety days after he received the right-to-sue letter. (Docket Entry No. 17 at 3). Jones argues that the limitations period should be tolled because he lacked the resources to file this 6 action sooner, it would be unjust for the defendants to benefit from the financial hardship caused by his being fired, he is proceeding pro se, and the alleged unlawful act was egregious. (Id.). A plaintiff’s financial hardship does not warrant equitable tolling. See Johnson v. Johnson, No. 98-10947, 1999 WL 767047, at *1 (5th Cir. Sept. 3, 1999) (declining equitable tolling for indigent habeas petitioner); Butler v. San Francisco Unified School Dist., No. 90-16480, 1992 WL 180214, at *2 (9th Cir. July 29, 1992) (rejecting Title VII plaintiff’s argument that equitable tolling was warranted “because he received confusing materials from the opposing party; he lacked financial assistance and could not obtain legal counsel; and he was hindered from filing because of the 1989 San Francisco earthquake”); Modisette v. Dallas Area Rapid Transit, No. 3-06-CV-2199-B, 2007 WL 582746, at *2 (N.D. Tex. Feb. 23, 2007) (quoting Hannahs v. United States, No. 94-2459-G, 1995 WL 230461, at *3 (W.D. Tenn. Jan. 30, 1995)) (“Financial hardship . . . is not sufficient to warrant equitable tolling of the limitations period.”). The fact that a plaintiff is proceeding pro se does provide a basis for tolling the limitations period. See Booker v. U.S. Postal Service, No. 97-30259, 1997 WL 802483, at *1 (5th Cir. Nov. 19, 1997) (declining equitable tolling that was based on fact that Title VII plaintiff is pro se); King v. Miss. Employment Sec. Comm'n, No. 94-60133, 1994 WL 558931, at *2–3 (5th Cir. Sept. 29, 1994) (declining equitable tolling for pro se Title VII plaintiff); see also Lomax v. Sears, Roebuck & Co., No. 99-6589, 2000 WL 1888715, at *6 (6th Cir. Dec. 19, 2000) (per curiam) (“[A]ll [Title VII] claimants, including pro se 7 claimants, have a responsibility to meet the requirements of the law.”); Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996) (“[P]ro se status does not relieve [a plaintiff] of the obligation to meet procedural requirements established by law.”). Jones does not allege or argue any of the grounds that would justify equitable tolling. There is no indication that the EEOC failed to provide adequate notice or that Jones was misled by the EEOC or the defendants about the deadline for filing suit. Equitable tolling is not appropriate in this case. See St. Louis, 65 F.3d at 47–48 (citing Baldwin County Welcome Ctr., 466 U.S. at 151) (“One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.”); Modisette, 2007 WL 582746, at *2 (refusing to toll the limitations period because “Plaintiff does not allege, much less offer any evidence, that she actively pursued her judicial remedies during the statutory filing period or was tricked or induced by defendant into allowing the filing deadline to pass” and rejecting plaintiff’s argument that the court should “toll the statute of limitations on equitable grounds because of financial hardships caused by [plaintiff’s] termination”). Jones’s Title VII claim is dismissed because it was not filed within the applicable limitations period and no basis for tolling applies. B. Jones’s Claims under Sections 1981 and 1983 The limitations period for claims under sections 1981 and 1983 is borrowed from the forum state's limitations period for general personal injury causes of action. In Texas, this period is two years. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000) (citation omitted); Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993) (citations 8 omitted). Although state law determines the limitations period, federal law determines when the claim accrues. Burrell v. Newsome, 883 F.2d 416, 419 (5th Cir.1989). Under federal law, a cause of action accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action. Id. Jones was fired on October 7, 2005. His complaint makes it clear that he knew at that time the facts on which his race discrimination claim is based. Jones filed this suit on October 12, 2007, after the two-year limitations period expired. Jones has failed to identify any grounds that would justify tolling the limitations period. Filing a charge with the EEOC under Title VII does not toll the limitations period for a related claim under section 1981 or 1983. See Taylor v. Bunge Corp., 775 F.2d 617, 618–19 (5th Cir. 1985) (footnote omitted). Jones’s section 1981 and 1983 claims are dismissed because they were not filed within the limitations period and no basis for tolling that period applies. III. Conclusion The defendants’ motion to dismiss is granted. Leave to amend is not granted because it would be futile. Final judgment is entered by separate order. SIGNED on June 23, 2008, at Houston, Texas. ______________________________________ Lee H. Rosenthal United States District Judge 9
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