United States District Court, D. Kansas
JOHN K. DELANEY, Plaintiff,
KIRK THOMPSON, Defendant.
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW U.S. Senior District Judge
matter is before the Court on several motions: (1)
Plaintiff's Amended Motion Seeking Authorization to Amend
Specific Portions of Plaintiff's Complaint (ECF No. 31);
(2) Defendant's Motion to Dismiss Plaintiff's
Complaint (ECF No. 21); (3) Plaintiff's Request for
Hearing (ECF No. 34); (4) Plaintiff's Request for a Trial
Date (ECF No. 36); and (5) Plaintiff's Request for Status
Hearing (ECF No. 37). For the reasons described herein,
Plaintiff's motion to amend his complaint is granted,
rendering Defendant's Motion to Dismiss Plaintiff's
original Complaint moot. Plaintiff's other motions are
denied. In addition, Plaintiff is ordered to show good cause
why this action should not be dismissed as untimely.
Amended Motion to Amend Plaintiff's Complaint (ECF No.
filed a motion to amend his Complaint twelve (12) days after
Defendant filed his motion to dismiss. See ECF No.
25. Plaintiff's initial motion was denied for failing to
attach the proposed amended complaint as required by local
rule. See ECF No. 30. The Court did, however, grant
Plaintiff's request to dismiss then-Governor Colyer as a
defendant. Id. Plaintiff subsequently filed this
motion with the amended complaint attached. ECF No. 31.
15(a)(1) provides that a party may amend its pleading once as
a matter of course within 21 days after service of a
responsive pleading or a motion under 12(b), whichever is
earlier. Plaintiff filed a motion seeking leave to amend his
Complaint within 21 days of service of Defendant's motion
to dismiss. If he had also filed the Amended Complaint at
that time, leave of court would not have been required.
However, because he did not, Rule 15(a)(2) provides that
written consent of the opposing party or leave of court is
required to amend a pleading where paragraph (a)(1) is not
applicable. The rule further states that “[t]he court
should freely give leave when justice so requires.”
has filed no opposition to Plaintiff's request to amend
his Complaint. In fact, Defendant acknowledges that leave to
amend should be freely given and cites Minter v. Prime
Equipment Co., 451 F.3d 1196, 1204 (10th Cir.
2006) for the proposition that “the grant of leave to
amend the pleadings pursuant to Rule 15(a) is within the
discretion of the trial court.” See ECF No. 35
Amended Motion Seeking Authorization to Amend Specific
Portions of Plaintiff's Complaint (ECF No. 31) is
Motion to Dismiss Plaintiff's Complaint (ECF No.
Motion to Dismiss was directed at Plaintiff's original
complaint. Because the Court grants Plaintiff leave to file
his Amended Complaint, the Amended Complaint is the operative
complaint, see Miller v. Glanz, 948 F.2d 1562, 1565
(10th Cir. 1991), making the pending motion to
dismiss the original complaint irrelevant. See
Bertha v. Sullivan, 719 Fed.Appx. 516, 518 (7th Cir.
2017); see also Fawzy v. Wauquiez Boats SNC, 873
F.3d 451, 455 (4th Cir. 2017) (holding that district court
“ruled on a mooted complaint, not the operative
one” since plaintiff already had filed timely amended
complaint). Therefore, Defendant's motion to dismiss is
denied as moot.
reviewing the Amended Complaint and Plaintiff's other
pleadings, the Court has recognized an issue it failed to
raise in its screening of the original
complaint. This § 1983 action was filed out of
statute of limitations for a § 1983 action is determined
by looking to the state's personal injury statute.
Mondragón v. Thompson, 519 F.3d 1078, 1082
(10th Cir. 2008). Kansas has a two-year period of limitations
for personal-injury claims. Kan. Stat. Ann. §
60-513(a)(4). Thus, the two-year limitations period governs
this action. Eikenberry v. Seward Cty., Kansas, 734
Fed.Appx. 572, 575 (10th Cir. 2018), citing see Johnson
v. Johnson Cty. Comm'n Bd., 925 F.2d 1299, 1301
(10th Cir. 1991) (“[T]he appropriate statute of
limitations for § 1983 actions arising in Kansas is two
years, under Kan. Stat. Ann. § 60-513(a)(4).”).
established that Plaintiff had two years from the accrual of
his cause of action to file this suit, the next issue is
determining when such accrual occurred. Determining the
accrual date for a § 1983 claim is a question of federal
law. Mondragón, 519 F.3d at 1082. As a
general rule, “under federal law governing statutes of
limitations, a cause of action accrues when all events
necessary to state a claim have occurred.” United
States v. Hess, 194 F.3d 1164, 1175 (10th Cir. 1999)
(internal citation and quotation marks omitted). The claim
accrues when the plaintiff knows, or should know, that his or
her rights have been violated. Kripp v. Luton, 466
F.3d 1171, 1175 (10th Cir. 2006).
Delaney is challenging the constitutionality of the Kansas
Offender Registration Act (KORA) as applied to him, and he
bases his challenge on changes made to the statutory scheme
after his conviction for aggravated indecent liberties with a
child in 2001. Specifically, he refers to the duration of
registration required for his offense allegedly being
increased from 10 years to lifetime, his alleged right to
petition the sentencing court for relief from the duty to
register being revoked, and the penalty for violating KORA
being increased. ECF No. 31-1 at 2. Each of these changes
were accomplished through amendments to KORA in 2006, 2001,
and 2006, respectively. See Kan. Sess. L. 2006, ch.
214, sec. 9; Kan. Sess. L. 2001. ch. 208, sec. 15; Kan. Sess.
L. 2006, ch. 212, sec. 20. If ...