United States District Court, D. Kansas
MICHAEL S. HAYES, Plaintiff,
STATE OF KANSAS, et al., Defendants.
MEMORANDUM AND ORDER
Crow, Senior U.S. District Judge.
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. On October 26, 2018, the Court entered
a Memorandum and Order and Order to Show Cause (Doc. 5)
(“MOSC”), directing Plaintiff to show cause why
his Complaint should not be dismissed as barred by the
applicable two-year statute of limitations and because he
named improper defendants who were immune from suit. The
Court found that Plaintiff's alleged violations occurred
in July to October of 1993, more than two years prior to the
filing date of his Complaint (September 5, 2018). The Court
also found that Plaintiff did not establish a factual basis
for tolling the limitation period. Before the Court is
Plaintiff's response (Doc. 6) to the MOSC.
statute of limitations applicable to § 1983 actions is
determined from looking at the appropriate state statute of
limitations and tolling principles. See Hardin v.
Straub, 490 U.S. 536, 539 (1989). “The forum
state's statute of limitations for personal injury
actions governs civil rights claims under both 42 U.S.C.
§ 1981 and § 1983. . . . In Kansas, that is the
two-year statute of limitations in Kan. Stat. Ann. §
60-513(a).” Brown v. Unified Sch. Dist. 501, Topeka
Pub. Sch., 465 F.3d 1184, 1188 (10th Cir. 2006)
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). Under
federal law, the claim accrues “when the plaintiff has
a complete and present cause of action.” Id.
(internal quotation marks and citation omitted). In other
words, “[a] § 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. 2006) (internal quotation marks and citation
omitted), cert. denied 549 U.S. 1059 (2006).
response fails to show good cause why his Complaint should
not be dismissed as barred by the statute of limitations.
Plaintiff acknowledges that the claims he asserts in his
Complaint were raised and argued by counsel in a hearing held
on October 13, 1993. Plaintiff asks the Court to consider
that Plaintiff was only seventeen at the time of the hearing,
that he only has a 10th grade education, and that he had no
prior knowledge of the law.
Kansas law, equitable tolling applies where a defendant has
acted or withheld material knowledge to induce a delay in
filing a cause of action.” Gorman v. City of
Olathe, Kan., 568 Fed.Appx. 597, 599 (10th Cir. 2014)
(unpublished) (citing Friends Univ. v. W.R. Grace &
Co., 608 P.2d 936, 941 (Kan. 1980)). Plaintiff has not
shown that Defendants affirmatively induced him into delaying
his filing of this § 1983 action or that despite
pursuing his rights diligently, some “extraordinary
circumstances” prevented the timely filing. Dartez
v. Peters, No. 15-3255-EFM-DJW, 2018 WL 1138282, at *6
(D. Kan. March 2, 2018) (citation omitted); see also
McClain v. Roberts, 2013 WL 3970215, at *3 (Kan.Ct.App.
2013) (finding that equitable tolling did not toll the
statute of limitations of a prisoner's § 1983 claim
because ignorance of the law was not an extraordinary
circumstance) (citing Harrison v. United States, 438
Fed.Appx. 665, 668 (10th Cir. 2011) (unpublished opinion));
see also K.S.A. § 60-515 (“if any person
entitled to bring an action . . . is less than 18 years of
age . . . such person shall be entitled to bring such action
within one year after the person's disability is removed,
except that no such action shall be commenced . . . more than
eight years after the time of the act giving rise to the
cause of action”).
district court may dismiss a complaint filed by an indigent
plaintiff if it is patently clear from the allegations as
tendered that the action is barred by the statute of
limitations. Fogle v. Pierson, 435 F.3d 1252,
1258-59 (10th Cir. 2006); see also Jones v. Bock,
549 U.S. 199, 214 (2007); Hawkins v. Lemons, No.
09-3116-SAC, 2009 WL 2475130, at *2 (D. Kan. Aug. 12, 2009);
see Fratus v. Deland, 49 F.3d 673, 674-75 (10th Cir.
1995) (district court may consider affirmative defenses
sua sponte when the defense is obvious from the face
of the complaint and no further factual record is required to
has not shown good cause why his Complaint should not be
dismissed. Because Plaintiff did not file his Complaint
within the two-year limitation period and because Plaintiff
does not establish a factual basis for tolling that
limitation period, Plaintiff's action is subject to
dismissal as barred by the statute of limitations.
IS THEREFORE ORDERED BY THE COURT that
Plaintiff's Complaint is dismissed with prejudice as
barred by the statute of limitations.