United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE.
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff is incarcerated at the
Hutchinson Correctional Facility in Hutchinson, Kansas
(“HCF”). The Court granted Plaintiff leave to
proceed in forma pauperis. Plaintiff alleges that
Detective David Gordan intentionally neglected his
responsibilities when he convinced the Ford County
Attorney's Office to file false murder and rape charges
against Plaintiff. Plaintiff alleges he was in jail for six
months before his charges were dismissed on March 1, 2016.
Plaintiff alleges that Defendant Gordan was negligent.
Plaintiff names Detective Gordan and the Ford County
Attorney's Office as Defendants and seeks $500, 000 in
damages for pain and suffering.
November 12, 2019, the Court entered a Memorandum and Order
and Order to Show Cause (Doc. 5) (“MOSC”),
granting Plaintiff until December 12, 2019, in which to show
good cause why his Complaint should not be dismissed as
barred by the statute of limitations. This matter is before
the Court on Plaintiff's Response (Doc. 6).
filed this civil rights case on July 31, 2019. Plaintiff
alleges that he was falsely arrested in October of 2015, and
the charges were dismissed on March 1, 2016. The 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) (citations omitted). The same two-year
statute of limitations governs actions under 42 U.S.C. §
1985. See Alexander v. Oklahoma, 382 F.3d 1206, 1212
(10th Cir.), rehearing denied, 391 F.3d 1155 (10th
Cir. 2004), cert. denied, 544 U.S. 1044 (2005).
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). A
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. Id. at 1258-59; 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).
Court found in the MOSC that it plainly appears from the face
of the Complaint that Plaintiff's Complaint is subject to
dismissal as barred by the applicable two-year statute of
limitations. Plaintiff filed his Complaint on July 31, 2019.
Plaintiff's alleged false charges were dismissed on March
1, 2016. It thus appears Plaintiff's claim arose more
than two years prior to the filing of Plaintiff's
Complaint and is time-barred. 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 be developed). The
Court found that Plaintiff has not alleged facts suggesting
that he would be entitled to statutory or equitable tolling.
Response, Plaintiff states that his “Complaint should
not be dismissed because [he is] entitled to relief for the
reasons stated on the original complaint and because [he is]
going to obtain an attorney to assist [him] in this
matter.” (Doc. 6, at 1.) Plaintiff's response fails
to address the statute of limitations or tolling as directed
in the MOSC. Plaintiff has failed to show good cause why his
Complaint should not be dismissed as barred by the statute of
limitations. Therefor, this action is dismissed for failure
to state a claim. See Smith v. Veterans Admin., 636
F.3d 1306, 1312-13 (10th Cir. 2011) (time-barred claim is
dismissed for failure to state a claim and the dismissal is a
strike under § 1915(g)) (citing Vasquez Arroyo v.
Starks, 589 F.3d 1091, 1096 (10th Cir. 2009) (quoting
Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166
L.Ed.2d 798 (2007), for “the long-standing rule that
‘[i]f the allegations . . . show that relief is barred
by the applicable statutes of limitations, the complaint is
subject to dismissal for failure to state a claim'”
(alterations in original)).
IS THEREFORE ORDERED THAT this matter is dismissed
for failure to state a claim.