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In McCormick v. Farrar, No. 02-2037, 2003 U.S. Dist. LEXIS 5066 (D. Kan. Mar. 20, 2003), the court applied the "knew or should have known" standard to determine the accrual date for the plaintiff's § 1983 conspiracy claim.
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Civil Action No. 02-2037-GTV
March 20, 2003
MEMORANDUM AND ORDER
Pro se Plaintiff, Dale E. McCormick, brings this action pursuant to 42 U.S.C. § 1983 alleging that Defendants, Ken Farrar, Brandon Nelson, Joseph Morrison, Sutagee Anglin, Jason Grems, Jeremy Kline, Tirsa Otero-Verdejo, Gary Bunting, Eric Spurling, Ryan Robinson, Loren Anderson, in his official capacity of Sheriff of Douglas County, Kansas, and John Does Numbers 1 and 2, violated his civil rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. The case is before the court on Defendant Farrar's motion to dismiss or, in the alternative, motion for summary judgment (Doc. 7), and Defendants Nelson, Morrison, Anglin, Grems, Kline, Otero-Verdejo, Bunting, Spurling, Robinson and Anderson's motion to dismiss (Doc. 11). For the reasons set forth below, Defendants' motions are granted.
I. MOTION TO DISMISS STANDARD
Defendant Farrar moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and/or for summary judgment pursuant to Fed.R.Civ.P. 56. The remaining Defendants only move to dismiss pursuant to Rule 12(b)(6). After reviewing the parties' briefs, the court concludes that it need not consider any materials outside the pleadings and therefore considers both motions under a Rule 12(b)(6) standard only.
A Rule 12(b)(6) motion to dismiss will be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling him to relief under his theory of recovery. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984) (citation omitted). The court must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed. Id. (citation omitted). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982).
Because Plaintiff in this case is proceeding pro se, the court affords him more leniency in construing his complaint. Asselin v. Shawnee Mission Med. Ctr., Inc., 894 F. Supp. 1479, 1484 (D.Kan. 1995) (citation omitted). The court may not, however, assume the role of advocate for Plaintiff simply because he is proceeding pro se. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Although not required to precisely state each and every element of his claim, Plaintiff must at least advance minimal factual allegations on the material elements of his claim to survive a Rule 12(b)(6) motion to dismiss. Miller v. Brungardt, 904 F. Supp. 1215, 1217 (D.Kan. 1995) (citing Hall, 935 F.2d at 1110).
II. BACKGROUND
The following facts are taken from Plaintiff's complaint and are assumed to be true for purposes of this opinion.
In the evening of Friday, January 22, 2000, Defendant Farrar, a Lawrence, Kansas police officer, stopped Plaintiff for a traffic violation. During the traffic stop, Defendant Farrar physically engaged and injured Plaintiff, including breaking his thumb. In addition, Plaintiff was suffering from the effects of influenza when he was pulled over by Defendant Farrar.
Defendant Farrar arrested Plaintiff and transported him to the Douglas County Jail at approximately 10:00 p.m. that same night. During the ride to the jail, Plaintiff requested, but was denied, access to medical attention. Defendant Farrar also informed Plaintiff at that time that he was going have him held in jail for, among other things, "battery on a law enforcement officer," a charge which, according to jail policy, would require Plaintiff to be held without possibility of posting bail until the following Monday when he could appear before a judge.
Plaintiff was booked into the jail at 10:15 p.m. on various offenses, including "battery on a law enforcement officer." Plaintiff continued to request medical attention at that time and throughout his confinement in the jail. Plaintiff did not receive medical attention until approximately 3:30 p.m. on Monday, January 24, 2000, when he was permitted to see a nurse working at the jail.
Plaintiff contends that Defendant Farrar and all of the remaining Defendants except Defendant Anderson were involved in a conspiracy to deprive Plaintiff of medical attention. Specifically, Plaintiff alleges that: (1) shortly after arriving at the jail on January 22, 2000, Defendant Farrar individually approached Defendants Anglin, Morrison, Nelson, and Grems and asked that they not provide Plaintiff with any medical treatment over the weekend, a request with which Defendants Anglin, Morrison, Nelson, and Grems expressly or impliedly agreed; (2) Defendants Anglin, Morrison, Nelson, and Grems communicated directly with Defendants Bunting, Otero-Verdejo, and Kline at the shift change at 10:15 p.m. on January 22, 2000 and conspired to continue depriving Plaintiff of medical treatment; (3) Defendants Bunting and Otero-Verdejo communicated directly with Defendant Spurling at 6:00 a.m. on January 23, 2000 and conspired to continue depriving Plaintiff of medical treatment; (4) Defendant Spurling communicated directly with Defendant John Doe Number 1 at 8:00 a.m. on January 23, 2000 and made an express or implied agreement to continue to deprive Plaintiff of medical attention; (5) Defendant John Doe Number 1 communicated with Defendant Robinson at 3:00 p.m. on January 23, 2000 and made an express or implied agreement for Defendant Robinson to continue to deprive Plaintiff of medical attention; (6) Defendant Robinson communicated with Defendant John Doe Number 2 at 11:00 p.m. on January 23, 2000 and made an express or implied agreement for John Doe Number 2 to continue to deprive Plaintiff of medical attention; and (7) Defendant John Doe Number 2 communicated with Defendant Grems at 11:00 p.m. on January 23, 2000 and made an express or implied agreement for Defendant Grems to continue to deprive Plaintiff of medical attention.
Plaintiff claims in his response to Defendants' motion to dismiss (Doc. 13) that he inadvertently alleged in his complaint that the shift change between Defendant John Doe Number 2 and Defendant Grems occurred at 11:00 p.m. on January 23, 2000. According to Plaintiff, his complaint should have stated that the shift change and subsequent communication between those two individuals occurred at 7:00 a.m. on January 24, 2000.
Plaintiff was held at the jail until he appeared before a judge at approximately 4:00 p.m. on January 24, 2000. No official charge of "battery on a law enforcement officer" was ever brought against him.
Plaintiff filed the instant lawsuit on January 24, 2002.
III. DISCUSSION
Defendants move to dismiss Plaintiff's claims against them on statute of limitations grounds. The statute of limitations for § 1983 claims arising in Kansas is two years. Johnson v. Johnson County Comm'n Bd., 925 F.2d 1299, 1300-01 (10th Cir. 1991) (explaining that the court applies the two year statute of limitations provided by K.S.A. § 60-513(a)(4) to § 1983 claims). Although the limitations period itself is supplied by state law, the time of accrual of a § 1983 claim is governed by federal law. Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 557 (10th Cir. 1999) (citation omitted). "Section 1983 claims accrue, for the purpose of the statute of limitations, when the plaintiff knows or has reason to know of the injury which is the basis of his action." Johnson, 925 F.2d at 1301 (internal quotation marks and quotation omitted). "[I]t is not necessary that a claimant know all of the evidence ultimately relied on for the cause of action to accrue." Baker v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir. 1993) (citation omitted).
For purposes of determining the precise date on which the limitations period concludes, the court looks to Fed.R.Civ.P. 6(a). Rule 6(a) provides that "[i]n computing any period of time prescribed or allowed . . . by any applicable statute, the day of the . . . event . . . from which the designated period of time begins to run shall not be included." Thus, if a cause of action accrues on January 1, 2000, the first day to be counted for computing purposes is January 2, 2000. A two-year period beginning on January 2, 2000 (or 366 days for the year 2000, a leap year, and 365 days for the year 2001) ends on January 1, 2002. See Merriweather v. City of Memphis, 107 F.3d 396, 398-400 (6th Cir. 1997); see also State v. Johnson, 868 P.2d 555, 558 (Kan.Ct.App. 1994) (applying K.S.A. § 60-206(a), which mirrors Fed.R.Civ.P. 6(a), to determine the computation of time for a limitations period). Thus, the statute of limitations on a § 1983 action in Kansas runs exactly two years from the date on which the action accrued.
A. Defendant Farrar
Plaintiff's first claim against Defendant Farrar is for unreasonable seizure/malicious prosecution. This claim arises from Defendant Farrar's arrest and detainment of Plaintiff on January 22, 2000 for "battery on a law enforcement officer." Plaintiff contends that Defendant Farrar had no probable cause to arrest or detain him on such a charge. "Claims arising out of police actions toward a criminal suspect, such as arrest, interrogation, or search and seizure, are presumed to have accrued when the actions actually occur." Johnson, 925 F.2d at 1301 (citations omitted). The presumption, therefore, is that Plaintiff's cause of action accrued on January 22, 2000. Plaintiff offers no allegation or other information to overcome that presumption. In fact, Plaintiff specifically alleges in his complaint that Defendant Farrar told him on January 22, 2000 that he was fabricating the charge against him so that he would have to spend the weekend in jail. Plaintiff's allegation indicates that he knew or had reason to know of the injury giving rise to this claim as of January 22, 2000, requiring him to file suit no later than January 22, 2002. Because he did not file suit until January 24, 2002, the claim is barred by the statute of limitations.
The court notes that although Plaintiff has termed this as an unreasonable seizure/"malicious prosecution" claim, the claim is really for unreasonable seizure and false arrest and/or false imprisonment, not "malicious prosecution." A malicious prosecution claim is only appropriate if a formal judicial proceeding commences on the complained-of charge. 52 Am. Jur.2d Malicious Prosecution § 4 (2000) (citing cases). Because no such proceeding was ever instituted on the complained-of charge, in this case "battery on a law enforcement officer," the court construes Plaintiff's claim for "malicious prosecution" to actually be a claim for false arrest and/or false imprisonment.
Plaintiff's second claim is that Defendant Farrar and several of his co-Defendants conspired to act deliberately indifferent to Plaintiff's medical needs. Specifically, Plaintiff contends that Defendant Farrar refused to take him to the hospital immediately after his arrest and, after bringing Plaintiff to the booking area of the jail on January 22, 2000, "ask[ed] or request[ed] that [Defendants Anglin, Morrison, Nelson, and Grimes] not provide any medical treatment to plaintiff." For purposes of the statute of limitations, "an action for civil conspiracy accrues with each overt act that is alleged to cause damage to plaintiff." McLoughlin v. Golf Course Superintendents Ass'n of Am., No. 85-4499, 1990 WL 129204, at *14 (D.Kan. Aug. 16, 1990) (citing Scherer v. Balkema, 840 F.2d 437, 439 (7th Cir. 1988)); see Masters v. Daniel Int'l Corp., No. 87-1290-SAC, 1992 WL 405307, at *3 (D.Kan. Dec. 3, 1992) (citations omitted). Although the court questions whether Plaintiff's allegations of conspiracy even state a valid § 1983 claim against Defendant Farrar, see Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1988) (citations omitted) ("Conclusory allegations of conspiracy are insufficient to state a valid § 1983 claim."), there is no doubt that his claim is barred by the two year statute of limitations. Taking the allegations in Plaintiff's complaint as true, it is clear that Plaintiff knew or had reason to know as of January 22, 2000 that Defendant Farrar was depriving him of medical attention and was conspiring with others to do the same. Because Plaintiff failed to file suit until January 24, 2002, his conspiracy charge against Defendant Farrar is barred by the statute of limitations.
Plaintiff's primary argument in opposition to Defendant Farrar's statute of limitations defenses is that each of the claims against Defendant Farrar involved a "continuous injury." Under his "continuous injury" theory, or more commonly referred to as the "continuing violation" doctrine, Plaintiff argues that even if he began suffering each of the injuries alleged on January 22, 2000, the causes of action for those injuries did not accrue until those injuries ceased — at the earliest January 24, 2002. Plaintiff's argument is without merit. The Tenth Circuit has indicated that the continuous violation doctrine is not applicable to § 1983 claims, and the court declines to apply it here. See Rassam v. San Juan Coll. Bd., No 95-2292, 1997 WL 253048, at *2-4 (10th Cir. May 15, 1997); see also Ratts v. Bd. of County Comm'rs, 141 F. Supp.2d 1289, 1313 (D.Kan. 2001) (citations omitted) (declining to apply the continuing violation doctrine to § 1983 claim). As stated, the statute of limitations standard in § 1983 cases focuses solely on the date that the plaintiff first knew or had reason to know of the injury which is the basis of his cause of action. Johnson, 925 F.2d at 1301 (citation omitted). As explained above, the face of Plaintiff's complaint indicates that he knew or had reason to know of the injuries giving rise to his claims by January 22, 2000 — two years and two days before filing suit in this case. Therefore, the claims are barred by the statute of limitations.
Defendant Farrar also raises the defenses of res judicata, collateral estoppel and qualified immunity. Because the court has already concluded that Plaintiff's claims against Defendant Farrar are barred on statute of limitations grounds, it need not address these additional defenses.
B. Defendant Anderson
Plaintiff's claim against Defendant Anderson is based on the argument that Defendant Anderson designed, maintained, or implemented an unconstitutional practice or custom at the Douglas County Jail by mandating that detainees held for "battery on a law enforcement officer" be denied the opportunity to post bond until they appear before a judge. Plaintiff alleges that this practice or custom resulted in his unlawful confinement in the Douglas County jail over the weekend of January 22, 2000. However, the face of Plaintiff's complaint reveals that Defendant Farrar informed Plaintiff of this policy while he was transporting Plaintiff to the Douglas County Jail on January 22, 2000. Plaintiff therefore knew or had reason to know of Defendant Anderson's allegedly unconstitutional practice or custom as of January 22, 2000. Because Plaintiff failed to file suit until January 24, 2002, his claim against Defendant Anderson is barred by the statute of limitations.
C. Remaining Defendants
Plaintiff's first claim against the remaining Defendants, Defendants Nelson, Morrison, Anglin, Grems, Kline, Otero-Verdejo, Bunting, Spurling, Robinson, John Doe Number 1, and John Doe Number 2, is that they acted with deliberate indifference to his medical needs by refusing to provide him with any medical treatment for the injuries he suffered during his arrest on January 22, 2000 or for the flu-like symptoms from which he suffered during his detainment at the jail. A claim for deliberate indifference to medical needs accrues when the plaintiff knew or had reason to know that the defendants were acting deliberately indifferent to his or her medical needs. Hanchett v. Saline County Bd. of Comm'rs, 194 F. Supp.2d 1150, 1152 (D.Kan. 2001) (citation omitted). Here, the face of Plaintiff's complaint indicates that he knew or had reason to know that each of these Defendants were acting with deliberate indifference to his medical needs prior to January 24, 2000. Moreover, Plaintiff specifically admits in his response brief that he knew of their deliberate indifference by the early morning hours of January 23, 2000. Because Plaintiff failed to file suit until January 24, 2002, his deliberate indifference claim against Defendants Nelson, Morrison, Anglin, Grems, Kline, Otero-Verdejo, Bunting, Spurling, Robinson, John Doe Number 1, and John Doe Number 2 is barred by the statute of limitations.
Plaintiff's second claim against the remaining Defendants is that they conspired with Defendant Farrar and one another to act with deliberate indifference to Plaintiff's medical needs. As noted previously, "an action for civil conspiracy accrues with each overt act that is alleged to cause damage to plaintiff." McLoughlin, No. 85-4499, 1990 WL 129204, at *14 (citing Scherer, 840 F.2d at 439); see Masters, No. 87-1290-SAC, 1992 WL 405307, at *3 (citations omitted). In this case, each overt act of conspiracy alleged in Plaintiff's complaint occurred prior to January 24, 2000, and is therefore barred by the statute of limitations.
The court notes Plaintiff's representation in his brief that the final alleged overt act of conspiracy, which Plaintiff's complaint states occurred between Defendant John Doe Number 2 and Defendant Grems at 11:00 p.m. on January 23, 2000, did not actually occur until 7:00 a.m. on January 24, 2000. Plaintiff has never moved for leave to amend his complaint to reflect the change in times, so the court cannot formally consider it. However, such a change — even if Plaintiff moved to make it — would be futile. "A conspiracy claim is time barred when the substantive or independent tort underlying it is time barred." Masters, No. 87-1290-SAC, 1992 WL 405307, at *5 (citations omitted). Because the court has already held that the underlying claim for deliberate indifference to Plaintiff's medical needs is time barred, Plaintiff's claim for conspiracy to act with deliberate indifference to his medical needs is likewise barred. Therefore, the court concludes that the entirety of Plaintiff's conspiracy claim against Defendants Nelson, Morrison, Anglin, Grems, Kline, Otero-Verdejo, Bunting, Spurling, Robinson, John Doe Number 1, and John Doe Number 2 is barred by the statute of limitations.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant Farrar's motion to dismiss or, in the alternative, motion for summary judgment (Doc. 7), and Defendants Nelson, Morrison, Anglin, Grems, Kline, Otero-Verdejo, Bunting, Spurling, Robinson and Anderson's motion to dismiss (Doc. 11) are granted.
The case is closed.
Copies of this order shall be transmitted to pro se Plaintiff and counsel of record for Defendants.