United States District Court, D. Kansas
MEMORANDUM AND ORDER
A. ROBINSON UNITED STATES DISTRICT JUDGE.
is a prisoner at the Norton Correctional Facility in Norton,
Kansas. He brings this action under 42 U.S.C. § 1983,
alleging excessive force by Defendants when he was removed
from his jail cell at the Wyandotte County Detention Center
on October 25, 2014. Before the Court is Defendants'
Motion to Dismiss (Doc. 20). Plaintiff has not responded to
the motion, nor to an Order to Show Cause why the motion
should not be granted for failure to respond (Doc. 24). The
motion can therefore be granted for failure to file a
response. The motion can also be granted on the merits, as
described more fully below.
failed to file a response to the motion to dismiss and the
time to do so has expired. Under D. Kan. Rule 7.4,
Absent a showing of excusable neglect, a party or attorney
who fails to file a responsive brief or memorandum within the
time specified in D. Kan. Rule 6.1(d) waives the right to
later file such brief or memorandum. If a responsive brief or
memorandum is not filed within the Rule 6.1(d) time
requirements, the court will consider and decide the motion
as an uncontested motion. Ordinarily, the court will grant
the motion without further notice.
pro se litigant is not excused from complying with
the rules of the court, and is subject to the consequences of
noncompliance. As a result of Plaintiff's failure to
respond, the Court may grant Defendants' motion to
dismiss as uncontested.
Court also finds that the Complaint must be dismissed on the
merits, because the claims are time-barred. The statute of
limitations for claims brought under 42 U.S.C. § 1983 is
governed by the personal injury statutes for the state in
which the federal district court sits.While state law
provides the statute of limitations period, federal law
determines the date on which the claim accrues and the
statute begins to run. State law also determines any tolling of
the limitations period, although federal law may allow for
additional tolling in rare circumstances. A claim brought
under § 1983 is characterized as a personal injury tort
for statute of limitations purposes. In Kansas, the statute of
limitations for personal injury actions is two
years. Therefore, to be timely, his claim must
have accrued within the two years prior to the date he filed
his Complaint on November 17, 2016.
civil rights action accrues when the plaintiff knows or has
reason to know of the injury which is the basis of the
action.” It is not necessary that the plaintiff
know of all the evidence that he ultimately relies on for the
statute of limitations to accrue. Assuming as true the facts
alleged in the Complaint, Plaintiff's claim accrued when
the excessive force incident occurred on October 25, 2014,
more than two years before he filed his Complaint. Therefore,
his civil rights claims are barred by the statute of
Court further dismisses Defendants Sheriff Donald Ash and
Lieutenant Brian Tucker for failure to state a plausible
claim of supervisory liability under § 1983. To be
liable under § 1983 under a supervisory liability
theory, Plaintiff must demonstrate: “(1) the defendant
promulgated, created, implemented or possessed personal
responsibility for the continued operation of a policy that
(2) caused the complained of constitutional harm, and (3)
acted with the state of mind required to establish the
alleged constitutional violation.” Plaintiff has
not alleged facts sufficient to meet these elements. Thus, he
has failed to state a claim as to Defendants Ash and Tucker.
IS THEREFORE ORDERED BY THE COURT that
Defendants' Motion to Dismiss (Doc. 20) is
IS SO ORDERED.
See D. Kan. R. 6.1(d)(2)
(requiring a response to a dispositive motion to be filed
within twenty-one days).
Ogden v. San Juan Cty., 32
F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (insisting
that pro se litigants follow procedural rules and
citing various cases dismissing pro se ...