Opinion
Case No. 1:16-cv-467-TWP-DKL
03-03-2016
JAMES KENNETH REED, Plaintiff, v. TONEY SISCO, LISA MCMILLIAN, RICK FOLLOWELL, Defendants.
Distribution: James Kenneth Reed #246445 Indiana State Prison One Park Row Michigan City, IN 46360
Entry and Show Cause Order
The plaintiff is currently an inmate at the Indiana State Prison. Because he is a "prisoner@ as defined by 28 U.S.C. ' 1915(h), the "complaint is subject to the screening requirement of 28 U.S.C. § 1915A(b). Pursuant to this statute, "[a] complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show that plaintiff is not entitled to relief." Jones v. Bock, 127 S. Ct. 910, 921 (2007). To survive a motion to dismiss, the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quotations omitted). Pro se complaints such as that filed by the plaintiff, are construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).
The plaintiff's claims are brought pursuant to 42 U.S.C. § 1983. A cause of action is provided by 42 U.S.C. § 1983 against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. Section 1983 is not itself a source of substantive rights; instead, it is a means for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
The first inquiry in every Section 1983 case is whether there has been the deprivation of a right secured by the Constitution or laws of the United States, for without a predicate constitutional violation one cannot make out a prima facie case under 1983. Juriss v. McGowan, 957 F.2d 345, 349 n.1 (7th Cir. 1992). In the complaint, the plaintiff alleges that on or about November 15, 2012, Officers Toney Sisco and Liza McMillian used excessive force on him while he was detained at the Brown County Jail. This complaint was filed on February 22, 2016, well after the expiration of Indiana's 2-year statute of limitations. See Martin v. Heuer, 483 F. App'x 287, 289 (7th Cir. 2012). It is, of course, irregular to dismiss a claim as untimely under Rule 12(b)(6). . . . However, . . . dismissal under Rule 12(b)(6) on the basis of a limitations defense may be appropriate when the plaintiff effectively pleads himself out of court by alleging facts that are sufficient to establish the defense. Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006)(intemal citations omitted).
Although the requirements of notice pleading are minimal, when a plaintiff pleads facts that show his suit is time barred or otherwise without merit, he has pleaded himself out of court. Tregenza v. Great American Communications Co., 12 F.3d 717, 718 (7th Cir. 1993), cert. denied, 511 U.S. 1084 (1994). The plaintiff's complaint is dismissed for failure to state a claim.
The plaintiff shall have though April 4, 2016, in which to show cause why Judgment consistent with this Entry should not issue. See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th Cir. 2013)
IT IS SO ORDERED. Date: 3/3/2016
/s/_________
TANYA WALTON PRATT, JUDGE
United States District Court
Southern District of Indiana Distribution: James Kenneth Reed
#246445
Indiana State Prison
One Park Row
Michigan City, IN 46360