United States District Court, D. Kansas
Crow, U.S. District Senior Judge
case is before the court upon plaintiff's motion (Doc.
No. 18) for reconsideration of the court's order (Doc.
No. 14) dismissing plaintiff's action. The court
dismissed plaintiff's action on the grounds that it
appeared untimely upon the face of the complaint and
materials filed by plaintiff. As the court stated in a
previous order (Doc. No. 17) denying what the court treated
as a motion to alter or amend, FED.R.CIV.P. 59(e) gives the
court the discretion to reconsider a final decision if the
moving party can establish: (1) an intervening change in the
controlling law; (2) the availability of new evidence that
could not have been obtained previously through the exercise
of due diligence; or (3) the need to correct clear error or
prevent manifest injustice. Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
cause of action stems from events in 2002 when plaintiff was
16 years old. Plaintiff alleges that he was illegally
arrested and detained as an illegal alien in California and
later released in Mexico. During this time plaintiff was
“raped, robbed, beat and left for dead.” Doc. No.
13, p. 2. But, he was able to return to California in a few
weeks and graduated from high school there in 2004.
filed this case in November 2016. This is a Bivens
action. So, the limitations period and tolling provisions of
California apply. As the court explained in the order
dismissing this case, under these rules plaintiff's
complaint is untimely on its face.
motion to reconsider reiterates points plaintiff has made
previously. Plaintiff notes that he was a juvenile at the
time of the events in 2002 and that those events left him in
shock. The court considered those points in the order
dismissing this case. Plaintiff was no longer a juvenile in
2004. So, the statute of limitations period was exhausted by
the time plaintiff filed this case because, for the reasons
explained in the dismissal order, plaintiff's allegation
of “shock” does not provide a plausible grounds
to toll the running of the limitations period.
cites several cases in his motion to reconsider. But, these
cases are not persuasive. In Marrero-Gutierrez
v.Molina, 491 F.3d 1 (1st Cir. 2007), the
court held in an employment discrimination case that the
limitations period began at the time of the adverse action,
not the time that a plaintiff learned of the alleged illegal
motivation for the adverse action. In Brown v. Ga. Bd. of
Pardons and Paroles, 335 F.3d 1259, 1261
(11th Cir. 2003), the court held that the
limitations period for the plaintiff's action began to
run from the date the facts which would support a cause of
action were or should have been apparent. The court found
that the limitations period began to run in 1995 for the
plaintiff in Brown and that his action was untimely
filed. Marrero-Gutierrez and Brown do not
provide good grounds for modifying the court's holding in
Fratus v. DeLand, 49 F.3d 673 (10th Cir.
1995), the Tenth Circuit reversed a dismissal on the grounds
that the district court improperly determined a factual issue
as to the plaintiff's mental incompetency and whether it
tolled the limitations period, when the district court was
evaluating the case under 28 U.S.C. § 1915(d). The
record in Fratus contained allegations that the
plaintiff had been institutionalized for psychological
treatment and that there were numerous medical reports that
would establish his mental incompetency. In Neiberger v.
Hawkins, 208 F.R.D. 301 (D.Colo. 2002), the court,
applying Colorado law, held that an insanity determination
tolled the running of the statute of limitations. Unlike the
plaintiff in Fratus, Mr. Avalos has not alleged
facts plausibly supporting grounds to toll the statute of
limitations. As explained in the court's dismissal order,
alleging “shock” is insufficient. Unlike the
plaintiff in Neiberger, plaintiff does not allege
that he has been determined to be insane.
Papa v. United States, 281 F.3d 1004 (9th
Cir. 2002), the court held that the limitations period upon a
Bivens claim was tolled as to some plaintiffs who
were minors and that the tolling did not end when an
administrative claim was filed on their behalf. Mr. Avalos
reached the age of majority in 2004. The tolling of the
limitations period ended then and the period was exhausted
before he filed this case.
also makes reference to “the new Boy Scout case.”
Perhaps he means Doe v. Boy Scouts of America Corp.,
147 A.3d 104 (Conn. 2016). The Doe case, however,
does not involve a Bivens claim and does not apply
the statute of limitations and tolling provisions of
California. So, it is distinguishable. Finally, plaintiff
mentions a heavily publicized criminal case involving sexual
abuse. A criminal case, however, does not provide good
precedent for the analysis of a statute of limitations issue
in a civil case, like the one filed here by plaintiff.
above-stated reasons, the court shall deny plaintiff's
motion to reconsider.