United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. Senior District Judge
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. By order of October 17, 2017, the Court directed
Plaintiff to show cause why his complaint should not be
dismissed for failure to state a claim upon which relief may
be granted. The Court found that all of Plaintiff's
claims are either barred by the Heck doctrine or by
the statute of limitations. Before the Court is
Plaintiff's response (Doc. #11) to the show cause order.
filed a timely, 102-page response (Doc. #11) to the
Court's order to show cause. In that pleading, Plaintiff
makes several arguments why his complaint should not be
dismissed. After considering Plaintiff's response and the
additional information he provided, the Court finds that
Plaintiff's complaint should be dismissed.
first argues that because all of the defendants are public
officials, they act as trustees for the citizens and owe them
fiduciary duties. Therefore, by breaching those duties, they
are liable under their official bonds. It appears this is
part of his argument that the 5-year statute of limitations
provided by K.S.A. 60-511 should apply to this case as
opposed to the 2-year statute of limitations provided by
K.S.A. 60-513. This argument has no merit. The Tenth Circuit
has determined that K.S.A. 60-513 provides the statute of
limitations for § 1983 actions filed in Kansas.
Johnson v. Johnson County Comm'n Bd., 925 F.2d
1299, 1300-01 (10th Cir. 1991)(“the
appropriate statute of limitations for § 1983 actions
arising in Kansas is two years under Kan. Stat. Ann. §
also argues that even if the 2-year statute of limitations
under K.S.A. 60-513 applies, his cause of action did not
accrue until he realized the permanent nature of his physical
injuries and the extent of the defendants' fraudulent
behavior. While state law governs the length of the
limitations period and tolling issues, “the accrual
date of a § 1983 cause of action is a question of
federal law.” Wallace v. Kato, 549 U.S. 384,
388 (2007). “Since the injury in a
§ 1983 case is the violation of a
constitutional right, such claims accrue when the plaintiff
knows or should know that his or her constitutional rights
have been violated.” Smith v. City of Enid ex rel.
Enid City Commission, 149 F.3d 1151, 1154
(10th Cir. 1998) (quotation and citations
omitted). A plaintiff need not know the full extent of his
injuries before the statute of limitations begins to run.
Indus. Constructors Corp. v. U.S. Bureau of
Reclamation, 15 F.3d 963, 969 (10thCir.
1994), citing Gustavson v. United States, 655 F.2d
1034, 1036 (10th Cir. 1981); Robbins v. United
States, 624 F.2d 971, 973 (10th Cir. 1980).
to Plaintiff, his physical injuries occurred as a result of
the use of excessive force by some of the defendants during
the entry and search of his home on August 18, 2013.
“Claims arising out of police actions toward a criminal
suspect, such as arrest, interrogation, or search and
seizure, are presumed to have accrued when the actions
actually occur.” Beck v. City of Muskogee Police
Dept., 195 F.3d 553, 558 (10th Cir. 1998)
(quoting Johnson v. Johnson County Com'n.
Bd., 925 F.2d 1299, 1301 (10th Cir. 1991).
His cause of action accrued on August 18, 2013, regardless of
when he realized the full extent of his injuries.
Defendants' fraudulent behavior, Plaintiff alleges
Defendants fraudulently concealed or destroyed exculpatory
evidence and fraudulently manufactured inculpatory evidence.
Some of these actions may have occurred within the two-year
statute of limitations, but, as explained in the Court's
order to show cause, a claim based on those actions is barred
under Heck because finding in Plaintiff's favor
would necessarily call into question the validity of his
conviction. See Heck v. Humphrey, 512 U.S. 477, 479
(1994); Glaser v. City & Cty. of Denver,
Colo., 557 Fed.Appx. 689, 701 (10th Cir.
2014); Baldwin v. O'Connor, 466 Fed.Appx. 717,
717-718 (10th Cir. 2012); Ames v.
Oklahoma, 158 F. App'x 114, 117 (10th
Cir. 2005); Parris v. United States, 45 F.3d 383,
384 (10th Cir. 1995).
Plaintiff argues he should qualify for equitable tolling of
the statute of limitations due to the Defendants'
fraudulent actions. Under Kansas law, in order “[t]o
constitute concealment of a cause of action within the
general rule tolling the statute of limitations, ... there
must be something of an affirmative nature designed to
prevent, and which does prevent, discovery of the cause of
action.” Baker v. Bd. of Regents of State of
Kan., 991 F.2d 628, 633 (10th Cir. 1993),
quoting Friends Univ. v. W.R. Grace & Co., 608
P.2d 936, 941 (Kan. 1980). “This standard is similar to
that applied by the Tenth Circuit for equitable tolling under
federal principles of fraudulent concealment. The [plaintiff]
must show that his ignorance was not the result of his lack
of diligence, but was due to affirmative acts or active
deception by the [defendants] to conceal the facts giving
rise to the claim.” Id. at 633 n.4, citing
Johnson v. U.S. Postal Serv., 861 F.2d 1475, 1481
(10th Cir. 1988), cert. denied, 493 U.S.
has not shown or even alleged that he failed to file his
§ 1983 action within the limitations period because of
affirmative acts or active deception by Defendants. Instead,
Plaintiff claims Defendants' engaged in fraudulent
concealment of evidence at trial. The Court finds no basis
for tolling the statute of limitations due to fraudulent
Plaintiff argues Heck does not apply because his
complaint has “nothing to do with his
conviction.” Doc. #11, at 3. He states his conviction
was based on “improper grounds for mere presence of
just being there” and argues his “conviction was
not based upon evidence at trial.” Id. at 14,
16 (internal quotation marks omitted). Plaintiff seems to be
trying to argue his conviction did not result from evidence
obtained as a result of the allegedly defective searches or
the defendants' fraudulent actions in suppressing
exculpatory or fabricating inculpatory evidence and
consequently Heck should not bar his complaint.
However, Plaintiff had a trial where such evidence was
presented to the jury (or not, in the case of exculpatory
evidence) and where Plaintiff was convicted. Regardless of
Plaintiff's assertions as to what the jury based its
decision upon, it is impossible to know. The fact remains
that a judgment in his favor would necessarily imply the
invalidity of his conviction.
all of Plaintiff's claims are either premature under the
principles of Heck v. Humphrey or untimely under the
statute of limitations, Plaintiff fails to state a claim on
which relief may be granted, and his complaint must be
dismissed under 28 U.S.C. § 1915A and 28 U.S.C. §
IS THEREFORE ORDERED that Plaintiff's complaint
is dismissed for failure to state a claim on which relief may