United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge.
plaintiff Enoch Clark III, an inmate at F.C.I. Greenville in
Greenville, Illinois, is seeking relief under 42 U.S.C.
§ 1983 against the named Kansas City, Kansas police
officers, Kevin Wills, Sarah Panjada and Phillip Trusskey,
for Fourth Amendment violations arising from their search and
seizure of Mr. Clark on March 7, 2014. The plaintiff Clark is
also bringing a Bivens action seeking relief against the
Assistant United States Attorney Terra D. Morehead for
malicious prosecution and abuse of process on charges arising
from the unlawful search and seizure. Clark alleges the
United States of America is “legally responsible for
the unlawful acts committed by” its employees. ECF#15,
¶ 9. The plaintiff originally brought this action
against only the defendant officers who had filed then a
motion to dismiss for failure to state a claim arguing that
the § 1983 action had not been filed within two years of
Clark's arrest in March of 2014. ECF# 8. The plaintiff
responded by filing a first amended complaint adding the
defendants Morehead and United States of America and adding
the claims of malicious prosecution and abuse of process.
ECF# 15. The plaintiff also filed separately a response
stating that the defendant officers' motion was moot.
ECF# 16. The court agrees this motion to dismiss (ECF# 8) is
moot in light of subsequent filings and is denied for that
reason. The first amended complaint, however, has not been
screened, and no summons has been issued on these additional
Bivens defendants. The court will address these
defendant officers have filed a second motion to dismiss for
failure to state a claim again arguing that the governing
two-year statute of limitations commenced with the
Clark's arrest and custody on March 7, 2014, and expired
before he filed this action on June 6, 2016. ECF# 17. Citing
Heck v. Humphrey, 512 U.S. 477 (1994), and
Wallace v. Kato, 549 U.S. 384 (2007), the plaintiff
Clark contends his § 1983 claim for “wrongful
seizure” is not untimely, for he could not have
commenced his action “until his motion to suppress the
evidence was granted” by the federal district court
judge in his criminal case. ECF# 22. In reply, the defendant
officers counter Clark's argument as a misreading of
Heck which is inapplicable because Clark was not
convicted of any offense related to the March 7th events. The
defendants point to Wallace as clarifying that the
possibility of Clark's conviction on the March 7th events
did not delay the accrual of Clark's wrongful search and
seizure claims. The defendants also deny the plaintiff has
alleged a Fourth Amendment malicious prosecution claim. If
Clark had alleged one, the defendants say this claim too
would not survive their 12(b)(6) motion. This is because the
dismissal of charges upon a successful suppression motion
does not qualify as a favorable termination for a malicious
prosecution claim according to Margheim v. Buljko,
855 F.3d 1077, 1089 (10th Cir. 2017).
GOVERNING RULE 12(B)(6) MOTIONS
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 (1988)
(citations omitted); Northington v. Jackson, 973
F.2d 1518, 1523 (10th Cir. 1992). In addressing a claim
brought under § 1983, the analysis begins by identifying
the specific constitutional right allegedly infringed.
Graham v. Connor, 490 U.S. 386, 393-94 (1989). The
validity of the claim then must be judged by reference to the
specific constitutional standard which governs that right.
liberally construes a pro se complaint and applies
“less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007). In addition, the court accepts all well-pleaded
allegations in the complaint as true. Anderson v.
Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other
hand, “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief,
” dismissal is appropriate. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 558 (2007).
court “will not supply additional factual allegations
to round out a plaintiff's complaint or construct a legal
theory on a plaintiff's behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)
(citation omitted). The same standard used for Fed.R.Civ.P.
12(b)(6) motions is used for 28 U.S.C. § 1915
dismissals, and this includes the newer language and meaning
taken from Twombly and its
“plausibility” determination. See Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations
omitted); see also Smith v. United States, 561 F.3d
1090, 1098 (10th Cir. 2009), cert. denied, 558 U.S.
1148 (2010). As a result, courts “look to the specific
allegations in the complaint to determine whether they
plausibly support a legal claim for relief.”
Kay, 500 F.3d at 1218 (citation omitted). Under this
new standard, “a plaintiff must ‘nudge his claims
across the line from conceivable to plausible.'”
Smith, 561 F.3d at 1098 (citation omitted).The court
accepts as true “all well-pleaded factual allegations
in a complaint and view[s] these allegations in the light
most favorable to the plaintiff.” Id. The
court's obligation to accept a complaint's
allegations as true is tempered by the principle that
“mere labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
suffice; a plaintiff must offer specific factual allegations
to support each claim.” Kansas Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting
in part Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal quotation marks omitted)).
governing statute of limitations in § 1983 actions is
the state statute of limitations for personal injury actions.
See Hardin v. Straub, 490 U.S. 536, 539 (1989);
Brown v. Unified Sch. Dist. 501, Topeka Pub. Schs.,
465 F.3d 1184, 1188 (10th Cir. 2006). “For Kansas, this
is the two-year limitations period in K.S.A. §
60-513(a).” Brown, 465 F.3d at 1188. The
accrual of a § 1983 claim, however, is a matter of
federal law and occurs “when the plaintiff has a
complete and present cause of action.” Wallace v.
Kato, 549 U.S. 384, 388 (2007).
§ 1983 action accrues when facts that would support a
cause of action are or should be apparent.” Fogle
v. Pierson, 435 F.3d 1252, 1258 (10th Cir.)(internal
quotation marks and citation omitted), cert. denied,
549 U.S. 1059 (2006). The common-law tort principles applied
to § 1983 include “the standard rule that [accrual
occurs] when the plaintiff has a complete and present cause
of action, that is, when the plaintiff can file suit and
obtain relief.” Wallace v. Kato, 549 U.S. 384,
388 (2007) (internal quotation marks and citations omitted).
Thus, “[t]here can be no dispute that petitioner could
have filed suit as soon as the allegedly wrongful arrest
occurred, subjecting him to the harm of involuntary
detention, so the statute of limitations would normally
commence to run from that date.” Id. But for a
false imprisonment claim, the Supreme Court in
Wallace distinguished the accrual date as when the
false imprisonment ends, that is, when detention without
legal process ends and the victim is “bound over by a
magistrate or arraigned on charges.” Id. at
389-90 (citations omitted). “From that point on, any
damages recoverable must be based on a malicious prosecution
claim and on the wrongful use of judicial process rather than
detention itself.” Id. at 390 (internal
quotation marks and citations omitted). The Tenth Circuit has
summarized this relevant law as follows:
A claim of false imprisonment accrues when the alleged false
imprisonment ends. Wallace v. Kato, 549 U.S. 384,
389, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). A claim of
malicious prosecution does not accrue until the criminal
proceedings have terminated in the plaintiff's favor.
See Heck v. Humphrey, 512 U.S. 477, 489, 114 S.Ct.
2364, 129 L.Ed.2d 383 (1994); Robinson v. Maruffi,
895 F.2d 649, 654-55 (10th Cir.1990). . . .
What separates the two claims?-the institution of legal
process. Unreasonable seizures imposed without legal process
precipitate Fourth Amendment false imprisonment claims.
See Wallace, 549 U.S. at 389, 127 S.Ct. 1091
(concluding that false imprisonment was the proper analogy
where defendants did not have a warrant for the
plaintiff's arrest and thus detention occurred without
legal process). Unreasonable seizures imposed with legal
process precipitate Fourth Amendment malicious-prosecution
claims. See Heck, 512 U.S. at 484, 114 S.Ct. 2364
(where detention occurs with legal process the
“common-law cause of action for malicious prosecution
provides the closest analogy”).
Myers v. Koopman, 738 F.3d 1190, 1194 (10th Cir.
2013) (footnote omitted), cert. denied, 134 S.Ct.
plaintiff Clark attaches to his amended complaint the federal
district court opinion granting his motion to suppress, and
it establishes that the search, seizure and arrest on March
7th occurred without legal process. ECF# 15-1. The plaintiff
also alleges he was released from Wyandotte County Detention
Center on March 10, 2014, without being
charged. Thus, the statute of limitations against
the state officers for the unlawful search and wrongful
arrest claims accrued on March 7th and for any false
imprisonment claim on March 10th. The complaint does not
allege the state officers taking any ...