United States District Court, D. Kansas
MEMORANDUM AND ORDER TO SHOW
Crow U.S. Senior District Judge
is hereby required to show good cause in writing to the
Honorable Sam A. Crow, United States Senior District Judge,
why this action brought under Bivens v. Six Unknown
Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91
S.Ct. 1999 (1971), should not be dismissed for failure to
state a claim. If plaintiff fails to show good cause within
the time prescribed herein, this action may be dismissed
without further notice.
Avalos, while an inmate of the United States Penitentiary in
Leavenworth, Kansas (“USP Leavenworth”), filed
this pro se civil complaint under Bivens. He
proceeds in forma pauperis. Plaintiff alleges that defendants
violated the constitution by deporting him in 2002.
Specifically, plaintiff alleges that when he was sixteen
years old, despite his American citizenship, he was deported
to Mexico by border patrol agents at San Ysidro, California.
Plaintiff alleges that during the two weeks he spent in
Mexico, he was beaten, raped, and robbed. He seeks $20, 000,
000 in compensatory damages.
court is required by statute to screen the complaint and to
dismiss the complaint or any portion thereof that is
frivolous, fails to state a claim on which relief may be
granted, or seeks relief from a defendant immune from such
relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. §
1915(e)(2)(B). “To state a claim under § 1983, a
plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487
U.S. 42, 48-49 (1988)(citations omitted); Northington v.
Jackson, 973 F.2d 1518, 1523 (10th Cir.
1992). A pro se party's complaint must be given a liberal
construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, a party proceeding pro se has “the
burden of alleging sufficient facts on which a recognized
legal claim could be based.” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
considered plaintiff's allegations, the court finds the
complaint is subject to summary dismissal for several
reasons. First, sovereign immunity bars Bivens suits
for money damages against the United States, its agencies,
and its employees sued in their official capacities.
Farmer v. Perrill, 275 F.3d 958, 963
(10th Cir. 2001). Plaintiff names as defendants
the United States, the United States Border Patrol, and the
unnamed border patrol officers who detained and deported
plaintiff. The complaint alleges no claims against the
unnamed federal employees in their individual capacities, and
contains no allegations which the court could liberally
construe as such. Plaintiff's complaint must therefore be
dismissed because defendants are immune from suit.
the complaint is subject to dismissal because plaintiff's
claims are time-barred, which he acknowledges. In a
Bivens action, the Supreme Court directs courts to
look to state law for the appropriate period of limitations
in cases filed under 42 U.S.C. § 1983. Kripp v.
Luton, 466 F.3d 1171, 1174 (10th Cir. 2006).
In California, that period is two years. Van Strum v.
Lawn, 940 F.2d 406, 408-10 (9th Cir.,
1991)(Bivens actions subject to personal injury
statute of limitations); Cal. Civ. Proc. §
335.1; Maldonado v. Harris, 370 F.3d 945, 954
(9th Cir. 2004). A prisoner's civil rights
complaint may be dismissed sua sponte as time-barred,
typically after giving the prisoner notice of the timeliness
issue and an opportunity to provide the necessary showing.
See, e.g., Starr v. Kober, 642 Fed. App'x 914,
2016 WL 929724, at *4 (10th Cir., March 11, 2016).
The court looks to state law for tolling rules, just as it
does for the length of statutes of limitations. Wallace
v. Kato, 549 U.S. 384, 395, 127 S.Ct. 1091, 1098-99
(2007). Plaintiff alleges a purported violation which
occurred in 2002 - more than two years before he filed his
complaint on November 9, 2016 - and the record does not
establish a factual basis for tolling the statute. See
Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036,
1041 n.4 (10th Cir. 1980) (holding that when the
dates given in the complaint make clear that the right sued
upon has been extinguished, plaintiff has the burden to
establish a factual basis for tolling the statute). Though
plaintiff argues strenuously that the statute of limitations
should be waived and cites various unrelated cases involving
the Boy Scouts as justification, he provides no legal or
factual basis for tolling the statute of limitations in this
case, under these circumstances.
pending before the court are three motions to supplement the
complaint (Docs. 7, 8, and 9). If a proposed amendment cannot
withstand a motion to dismiss or otherwise fails to state a
claim, the court may refuse to grant leave to amend.
Ketchum v. Cruz, 961 F.2d 916, 920
(10thCir. 1992). The court has reviewed the
motions and attached documents, and finds that the evidence
presented does not cure the complaint's deficiencies.
Plaintiff's proposed amendments are therefore futile and
the court denies plaintiff's motions to supplement.
reasons stated herein, it appears that this action is subject
to dismissal in its entirety as frivolous and for failure to
state a claim. Plaintiff is therefore required to show good
cause why his complaint should not be dismissed for the
reasons stated herein. Plaintiff is also given the
opportunity to file a complete and proper Amended Complaint
upon court-approved forms that cures all the deficiencies
discussed herein. If he does not file an Amended Complaint
within the prescribed time that cures all the deficiencies
discussed herein, this matter will be decided based upon the
current deficient complaint.
IS THEREFORE ORDERED BY THE COURT that plaintiff is
granted thirty (30) days in which to show good cause, in
writing, to the Honorable Sam A. Crow, United States District
Judge, why plaintiff's complaint should not be dismissed
for the reasons stated herein.
IS FURTHER ORDERED that within the same thirty-day
period plaintiff may file a complete and proper Amended
Complaint to cure all the deficiencies discussed herein.
IS FURTHER ORDERED that plaintiff's motions to
supplement the complaint (Docs. 7, 8, and 9) are denied,
clerk is directed to send forms and instructions to