Opinion
CIVIL ACTION No. 01-3101-KHV.
May 24, 2001
MEMORANDUM AND ORDER
Daniel Hysten, a former inmate at the Shawnee County Correctional Facility, has filed suit against the Shawnee County Department of Corrections, its director and two of its employees, Shawnee County, Kansas, and the Board of County Commissioners of Shawnee County, alleging that defendants violated his constitutional rights under the Eighth and Fourteenth Amendments and were negligent. This matter is before the Court on defendants' Motion To Dismiss (Doc. #7) filed April 12, 2001. For reasons stated below, defendants' motion is sustained.
Standards For Motion To Dismiss For Failure To State A Claim
A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Associated Wholesale Grocers., Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). The issue in reviewing the sufficiency of plaintiff's complaint is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Factual Background
The following is a summary of the factual allegations of plaintiff's complaint.
On March 10, 1999, without provocation by plaintiff, correctional officers at the Shawnee County Correctional Facility beat and strangled plaintiff, causing him to sustain severe physical injuries.
On March 15, 2001, plaintiff filed suit against defendants under 42 U.S.C. § 1983 and Kansas common law. Plaintiff alleges that defendants violated his constitutional right to be free from cruel and unusual punishment and that they were negligent because they failed to adequately train or supervise correctional officers.
Analysis
Defendants argue that the Court should dismiss plaintiff's complaint for failure to state a claim because it is barred by the applicable statute of limitations. Plaintiff does not deny that both of his claims are subject to a two year statute of limitations. See Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 557 (10th Cir. 1999) ("state statute of limitations applicable to general personal injury claims supply the limitations periods for § 1983 claims"); K.S.A. § 60-513(a)(4) (two year statute of limitations for personal injury claims); see also Civil Complaint (Doc. #1) filed March 15, 2001 at 5 (citing K.S.A. § 60-513(a)(4) in state law claim). Rather, plaintiff raises three potential grounds for tolling the statute of limitations: (1) he was required to file a notice of claim pursuant to K.S.A. § 12-105, (2) he was incarcerated during the two year limitations period, and (3) he did not know the extent of his injuries until several days after the alleged assault. At this point, the Court must reject plaintiff's arguments because in the complaint, he has failed to plead a factual predicate for any tolling theory. When the face of the complaint shows that the action was filed beyond the applicable statute of limitations, plaintiff must allege facts sufficient to show that the limitations period should be tolled. See Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir. 1980) (when dates in complaint make clear that right sued upon has been extinguished, plaintiff has burden of establishing factual basis for tolling); S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 425 (3d Cir. 1999); LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509-10 (1st Cir. 1998); LRL Props. v. Portage Metro Housing Auth., 55 F.3d 1097, 1107 (6th Cir. 1995); see also Jackson v. City of Kansas City, Kan., No. 99-2344-KHV, 2000 WL 574986, at *2 (D.Kan. Apr. 6, 2000) (on Rule 12(b)(6) motion, court cannot consider allegations or evidence of tolling outside pleadings). Because plaintiff has not done so, the Court dismisses his complaint. Based on plaintiff's opposition brief, however, the Court finds that plaintiff may be able to correct this error and allege a set of facts which is sufficient to support a tolling theory. The Court therefore grants plaintiff leave to file a motion to amend to allege grounds for tolling the statute of limitations.
IT IS THEREFORE ORDERED that defendants' Motion To Dismiss (Doc. #7) filed April 12, 2001 be and hereby is SUSTAINED. On or before June 11, 2001, plaintiff may file a motion to amend his complaint to allege grounds for tolling the statute of limitations.