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Delaney v. Thompson

United States District Court, D. Kansas

March 22, 2019

JOHN K. DELANEY, Plaintiff,
v.
KIRK THOMPSON, Defendant.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          SAM A. CROW U.S. Senior District Judge

         This 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.

         Plaintiff's Amended Motion to Amend Plaintiff's Complaint (ECF No. 31)

         Plaintiff 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.

         Rule 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.” Fed.R.Civ.P. 15(a)(2).

         Defendant 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 at 1.

         Plaintiff's Amended Motion Seeking Authorization to Amend Specific Portions of Plaintiff's Complaint (ECF No. 31) is granted.

         Defendant's Motion to Dismiss Plaintiff's Complaint (ECF No. 21)

         Defendant's 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.

         Statute of Limitations

         Upon 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.[1] This § 1983 action was filed out of time.

         The 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).”).

         Having 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).

         Mr. 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.[2] 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 ...


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