United States District Court, D. Kansas
JOHN K. DELANEY, Plaintiff,
KIRK THOMPSON, Defendant.
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. By order dated March 22, 2019, the Court
directed Plaintiff to show cause why his second amended
complaint should not be dismissed as barred by the applicable
two-year statute of limitations. The Court found that
Plaintiff's claim accrued in 2013 at the latest, more
than two years prior to the filing date of the initial
complaint in this action (February 16, 2018). The Court
further found that Plaintiff did not establish a factual
basis for tolling the limitation period. Before the Court are
Plaintiff's five (5) responses to the show cause order
(ECF Nos. 40, 41, 42, 43, and 45).
responses, Plaintiff makes two primary arguments why his
second amended complaint should not be dismissed. First, he
argues that there is no statute of limitations applicable to
claims for prospective injunctive relief against an
unconstitutional statute. He claims because this is not a
“damages” suit, the statute of limitations is not
applicable. He cites no support for this proposition, other
than his argument that because the harm is on-going, the
action was filed within the applicable two-year limitation
argument has no merit. Mr. Delaney filed this action under
§1983. The two-year statute of limitations in Kansas
applies whether he seeks damages, a declaratory judgment, or
is essentially arguing that the continuing violation doctrine
should apply. He argues he experiences a new violation every
day he is required to register under KORA, so the limitation
period will never expire. The continuing violation doctrine
operates to extend the statute of limitations where there is
a continuous series of unlawful acts. Parkhurst v.
Lambert, 264 Fed.Appx. 748, 749 (10th Cir.
2008). It does not apply where there is a single
constitutional violation with continuing effects.
Id. The Tenth Circuit has not determined whether the
continuing violation doctrine can apply to § 1983
claims, but assuming for the sake of argument that it can, it
would not be applicable here. Plaintiff's ongoing
requirement to register as a sex offender is a consequence of
a one-time action: his classification as a sex offender under
the registration statute. While that determination has
continued consequences, any alleged harm or injury was caused
by a one-time act. See Meggison v. Bailey, 575
Fed.Appx. 865, 867 (11th Cir. 2014).
Delaney also disputes the Court's determination of the
accrual date of his cause of action. He argues he did not
become aware of the amendment of KORA that allegedly required
him to register for his lifetime until 2016. However, in a
signed and witnessed Declaration he filed with the Court
before the limitations issue was raised, he stated,
“In 2009, I was called by a friend asking why it, on
the web site, indicated I had to register for the duration of
my “lifetime”? Upon my initial registration, and
all subsequent registrations up until 2009, law enforcement
had only indicated a requirement to register for a period of
ten (10) years. When I approached law enforcement and asked
why it said I was required to register for the duration of my
lifetime, I was told that the laws had changed.”
ECF No. 33 at 2-3. Plaintiff attempts to explain this
statement away by saying he lived in Nebraska at the time,
and “the context of that conversation, he believed,
applied to Nebraska law, not Kansas.” ECF No. 42 at 2.
Mr. Delaney offers no explanation for why, if that is the
case, he included the statement in this action challenging
the accrual date of a § 1983 claim is based not on
actual knowledge or awareness of a violation, but on when the
plaintiff should have known his rights had been violated.
Eikenberry v. Seward Cty., Kansas, 734 Fed.Appx.
572, 576 (10th Cir. 2018) (citing Krupp v.
Luton, 466 F.3d 1171, 1175 (10th Cir. 2006).
In a facial challenge of a statute, the claim accrues when
the statute becomes effective. Waltower v. Kaiser,
17 Fed.Appx. 738, 740 (10th Cir. 2001) (citing
Catawba Indian Tribe of S.C. v. United States, 982 F.2d
1564, 1569-71 (Fed. Cir. 1993).
Plaintiff is arguing that the statute of limitations did not
begin to run until he was prosecuted in 2016 for failing to
register under the lifetime requirement, he is in effect
arguing his prosecution was unconstitutional. This implicates
Heck v. Humphrey, and Plaintiff may not proceed with
a § 1983 action challenging the legality of his
prosecution until his conviction has been overturned on
direct appeal or through a habeas corpus action. See Heck
v. Humphrey, 512 U.S. 477, 486-87 (1994); Wilkinson
v. Dotson, 544 U.S. 74, 81-82 (2005). See also
Kitterman v. Newton, 721 Fed.Appx. 522, 523 (7th Cir.
2018) (“[A]ny ruling that defendants violated
[Plaintiff]'s constitutional rights by wrongly extending
and enforcing his registration requirement would necessarily
imply that he should not have been convicted and imprisoned
for failing to register.”); Hall v. Attorney Gen.
of Texas, 266 Fed.Appx. 355, 356 (5th Cir. 2008)
(“[B]ecause he is currently incarcerated for failure to
register, [Plaintiff]'s constitutional challenge to the
registration requirement also is an indirect challenge to his
incarceration. [Plaintiff]'s claims are thus not
cognizable under 42 U.S.C. § 1983 until he proves that
the incarceration has been reversed or declared
invalid.”) (citing see Heck, 512 U.S. at 487);
Williams v. Travis Cty., No. A-17-CA-014-SS, 2017 WL
933143, at *2 (W.D. Tex. Mar. 8, 2017) (“Plaintiff
cannot challenge the registration requirement in this case
until his charges have been dismissed, reversed, expunged,
invalidated, or called into question by a federal court's
issuance of writ of habeas corpus.”); Truelove v.
Owens, No. A-16-CA-1233-LY, 2017 WL 706348, at *4 (W.D.
Tex. Feb. 22, 2017) (same); Lane v. Jenkins, No.
CIV.A. 10-2149, 2011 WL 6425314, at *3 (E.D. Pa. Dec. 20,
2011) (“Ruling in favor of [Plaintiff] on his double
jeopardy claim would invalidate his conviction for failing to
register as a sexual offender. Hence, his claim is
Heck-barred.”); Hayes v. Texas, No.
A-08-CA-182-LY, 2009 WL 10703990, at *5 (W.D. Tex. Mar. 3,
2009), report and recommendation adopted, No.
A-08-CA-182-LY, 2009 WL 10703994 (W.D. Tex. July 7, 2009)
(constitutional challenge to registration requirement
“not cognizable under 42 U.S.C. § 1983 until
[plaintiff] proves that his incarceration has been reversed
or declared invalid”).
these reasons, Plaintiff's complaint must be dismissed.
Delaney has also filed a motion for hearing (ECF No. 46). In
his motion, Plaintiff requests a hearing to address the
status of the case. Because the Court finds Plaintiff's
complaint must be dismissed, the motion is denied.
IS THEREFORE ORDERED that Plaintiff's complaint
is dismissed without prejudice.
IS FURTHER ORDERED that Plaintiff's motion for