from the United States District Court for the Western
District of Texas
JOLLY, ELROD, and WILLETT, Circuit Judges.
WILLETT, CIRCUIT JUDGE.
Lee Moon languished in prison nearly seventeen years for a
crime he did not commit. Fortunately-albeit
belatedly-post-conviction DNA testing exonerated him. Upon
his release, Moon sued various government and law enforcement
personnel over his wrongful conviction and imprisonment. In
this appeal we need only decide: (1) whether false
imprisonment is a "continuing tort" under Texas law
(it is), (2) whether Moon's § 1983 due process claim
against the County Defendants is time-barred (it is), and (3)
whether the assistant district attorney enjoys prosecutorial
immunity (he does).
perpetrator of this 1987 sexual assault has never been
apprehended. Brandon Moon, however, is undeniably innocent,
and he is entitled under Texas law to pursue his
AFFIRM in part, REVERSE in part, and REMAND Moon's
pendent state tort claim for false imprisonment to the
years ago, Brandon Lee Moon was convicted of aggravated
sexual assault. Knowing he was innocent, Moon requested DNA
testing, which the trial court ordered. The district
attorney's office sent semen and blood samples to
Lifecodes, a DNA testing company. Moon's trial counsel
also obtained DNA samples from the district clerk's
office evidenced by an entry on a "checkout
document." Lifecodes's analysis ruled out the
possibility that Moon was the source of the DNA. But no
airtight legal conclusions could be drawn because
Lifecodes had no DNA samples from the victim's family for
forward to Moon's fourth habeas petition (filed pro se)
in 1996. Moon argued that Lifecodes's report entitled him
to release. Assistant District Attorney John Davis
represented the State of Texas. This round of habeas
proceedings revealed that the checkout form, which documented
that Moon's attorney checked out DNA evidence from the
district clerk's office in 1989, was missing. The
clerk's office conducted a three-week search-to no avail.
Given the checkout document's absence, Davis successfully
pressed a chain-of-custody argument. Moon's habeas
checkout document later turned up. It was in the district
clerk's office the whole time and was overlooked
during the search. According to Moon, the checkout document
was critical. Had it been recovered, Davis would not have
asserted a chain-of-custody argument. And as Moon sees it,
his habeas petition would have surely succeeded.
Moon's fourth habeas petition was pending, Davis
requested additional DNA testing. (Unlike the original
testing that followed Moon's conviction, this 1996 round
was sought by Davis, not by the court.) The results arrived a
few months later, after the habeas petition had been denied.
Donna Stanley, a Department of Public Safety criminalist,
reported that the DNA evidence excluded Moon as the source of
the semen. But as with the earlier Lifecodes analysis, the
1996 results could not conclusively establish Moon's
innocence absent reference samples from the victim and her
family. So the results helped exculpate (cast doubt) but did
not exonerate (clear doubt). Stanley sent the analysis to
Davis but not to Moon or to the court. Davis, in turn, did
not disclose the results to Moon or seek to obtain follow-up
DNA samples that would have confirmed Moon's innocence.
Moon remained in prison for eight more years-for a rape he
did not commit.
Innocence Project. In 2004, they acquired the final piece of
the scientific puzzle: blood samples from the victim and her
family. DNA testing irrefutably proved Moon's innocence
and secured his release in December 2004.
quite two years later, in October 2006, Moon brought this
suit raising § 1983 and state claims. According to Moon,
the City of El Paso and two detectives (City Defendants)
falsely imprisoned him; officials in the El Paso County
District Clerk's office (County Defendants) violated his
due process right of access to the courts by overseeing a
shambolic office and failing to keep track of the checkout
document; and Assistant District Attorney Davis deprived him
of due process by making an unfounded chain-of-custody
argument during Moon's 1996 habeas proceeding, and
failing to inform Moon of the State's separate
exculpatory (though not conclusively exonerating) DNA report.
next decade, the district court oversaw limited discovery.
Eventually, it dismissed (or granted summary judgment
against) all of Moon's claims. Moon appealed, challenging
only the dismissal of (1) his state false-imprisonment claim
against the City Defendants; (2) his § 1983 due process
claim against the County Defendants; and (3) his § 1983
due process claim against Assistant District Attorney Davis.
Standard of Review
review de novo a dismissal under Rule 12(b)(6). In the
proceedings below, the parties introduced and used evidence
extrinsic to the pleadings, so the district court construed
Defendants' motions to dismiss as motions for summary
judgment. Our review of a summary-judgment grant is
de novo too, applying the same standard as the district
court. Summary judgment is proper "if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law."
False imprisonment is a "continuing tort" in Texas,
and Moon's claim was timely filed.
residual two-year statute of limitations governs Moon's
false-imprisonment claim. But when did the clock start running:
When Moon was imprisoned in 1988 or when he was released in
2004? The district court chose the former, meaning his 2006
claim was time-barred. We disagree.
limitations is the sole basis for the district court's
dismissal of Moon's false-imprisonment claim, we make an
Erie prediction whether the Supreme Court of Texas
would hold that false imprisonment is a continuing
tort. The default accrual rule, as that Court
recently reaffirmed, is that "a cause of action
generally accrues at the time when facts come into existence
which authorize a claimant to seek a judicial remedy,"
and the "fact that damage may continue to occur for an
extended period . . . does not prevent limitations from
starting to run." On the other hand, added the Court,
"We recognize that the continuing-tort doctrine might
provide needed protections to plaintiffs in certain
formal precedential matter, the Supreme Court of Texas is
agnostic: "We have neither endorsed nor addressed the
continuing-tort doctrine." And our circuit has no
binding precedent on whether the doctrine applies in the
false-imprisonment context, although one unpublished opinion
concluded that a Texas false-imprisonment claim accrued at
the time of imprisonment. Yet multiple Texas
intermediate courts have weighed in. And they
uniformly hold that false imprisonment is a continuing tort
that accrues upon the plaintiff's release. The City
Defendants cite various cases opposing this
proposition. But these cases are distinguishable as
they address ...