United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW SENIOR U.S. 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. The
Court granted Plaintiff leave to proceed in forma
pauperis. On November 15, 2019, the Court entered a
Memorandum and Order and Order to Show Cause (Doc. 6)
(“MOSC”), granting Plaintiff until December 6,
2019, in which to show good cause why his Complaint should
not be dismissed. The Court granted Plaintiff an extension of
time to January 6, 2020, to respond to the MOSC. Plaintiff
has failed to respond to the MOSC by the Court's
alleges in his Complaint that on July 31, 1993, a warrant was
issued by the county attorney for Atchison County, Kansas,
and a complaint was filed against “a Fugitive From
Justice” on August 11, 1993, in Platte County,
Missouri. Atchison County was granted a 90-day continuance to
receive a Governor's Warrant to extradite Plaintiff. On
October 13, 1993, Atchison County demanded Plaintiff as a
juvenile, and P.D. Keith Ludwig stated that Plaintiff is a
resident of Missouri and a legal adult who is fighting
extradition to Kansas so a governor's warrant is required
for transportation across state lines, and even if he was
demanded as a juvenile, they would need his parent's
written consent to take a juvenile from state to state. On
October 28, 1993, Atchison County held a hearing to certify
Plaintiff as an adult and he was transported from state to
state without a governor's warrant or his parent's
consent. Plaintiff alleges that the Platte County
Sheriff's Department violated his rights by allowing
Atchison County to transport Plaintiff. Plaintiff names the
Platte County Sheriff's Department as the sole defendant
and seeks one million dollars in damages.
Court found in the MOSC that Plaintiff raised this same claim
in No. 18-3230. In that case, the Court found that
Plaintiff's claims were barred by the statute of
limitations. 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).
plainly appears from the face of the Complaint that
Plaintiff's claims are subject to dismissal as barred by
the applicable two-year statute of limitations. Plaintiff
filed his Complaint on August 27, 2019. Plaintiff's
alleged violations occurred in July to October 1993. It thus
appears that any events or acts of Defendant taken in
connection with Plaintiff's claims took place more than
two years prior to the filing of Plaintiff's Complaint
and are 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). Plaintiff has not
alleged facts suggesting that he would be entitled to
statutory or equitable tolling.
Court also found in the MOSC that Plaintiff failed to name an
individual defendant and names the Platte County
Sheriff's Department as the sole defendant. To impose
§ 1983 liability on the county and its officials for
acts taken by its employee, plaintiff must show that the
employee committed a constitutional violation and that a
county policy or custom was “the moving force”
behind the constitutional violation. Myers v. Oklahoma
Cty. Bd. of Cty. Comm'rs, 151 F.3d 1313, 1318 (10th
Cir. 1998) (citing Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 695 (1978)). The Supreme Court
explained that in Monell they decided “a
municipality can be found liable under § 1983 only where
the municipality itself causes the constitutional violation
at issue, ” and “there are limited circumstances
in which an allegation of a ‘failure to train' can
be the basis for liability under § 1983.” City
of Canton, Ohio v. Harris, 489 U.S. 378, 385-86 (1989).
Plaintiff has pointed to no policy or deficiency in the
training program used by the Sheriff's Department and no
causal link between any such inadequacy and the allegedly
unconstitutional acts of staff.
the Platte County Sheriff's Department is located in
Platte County, Missouri. Under 28 U.S.C. § 1391(b):
action may be brought in -
(1) a judicial district in which any defendant resides, if
all defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the
action is situated . . .
28 U.S.C. § 1391(b)(1)-(2). Accordingly, even if
Plaintiff's action is not barred by the statute of
limitations, venue would be proper in Missouri under 28
U.S.C. § 1391(b).
Court also found that Plaintiff's request for monetary
damages may be barred by Heck. In Heck v.
Humphrey, the United States Supreme Court held that when
a state prisoner seeks damages in a § 1983 action, the
district court must consider the following:
whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the ...