Opinion
CIV-20-190-D
04-24-2020
LLOYD WAYNE TILLMAN, Plaintiff, v. JASON BARBER, et. al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a prisoner appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the Complaint pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(B), the undersigned recommends Plaintiff's action be dismissed without prejudice as untimely.
I. Background
In December 2014, Plaintiff was confined in the Canadian County Jail. Doc. No. 1 ("Comp.") at 1. While attending disciplinary proceedings within the Jail, Plaintiff was physically assaulted by Defendant Jason Barber. Id. at 2. Following the assault, while escorting Plaintiff out of the proceedings and down a hallway, Defendant Jessica Ellison tasered Plaintiff in the upper back without cause or justification. Id. He was refused medical treatment for his injuries, which included a broken nose and two broken fingers. Id. at 2-3. Plaintiff also asserts that he was subsequently transferred to a maximum security facility in retaliation, though the basis of the retaliation is unclear from Plaintiff's allegations. Id.
II. Screening of Prisoner Complaints
A federal district court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). After conducting an initial review, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520 (1972), "[t]he burden is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Further, a claim is frivolous "where it lacks an arguable basis either in law or in fact" or is "based on an indisputably meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. Analysis
Plaintiff's claims initially arise from an assault that occurred in December 2014. Comp. at 1-2. The statute of limitations period for claims brought under 42 U.S.C. § 1983 "is dictated by the personal injury statute of limitations in the state in which the claim arose, Wallace v. Kato, 549 U.S. 384, 387 [] (2007), and in Oklahoma, that period is two years." McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir. 2011) (citing Okla. Stat. tit. 12, § 95(A)(3)). Although the length of the limitations period is determined by reference to the law of the forum state, the accrual of the federal cause of action is determined by federal law. Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1154 (10th Cir. 1998).
A civil rights action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. Since the injury in a § 1983 case is the violation of a constitutional right, such claims accrue when the plaintiff knows or should know that his or her
constitutional rights have been violated. This requires the court to identify the constitutional violation and locate it in time.Smith, 149 F.3d at 1154 (citations and quotations omitted).
Plaintiff specifically alleges that the assault, excessive force, and denial of medical treatment occurred in December 2014. Comp. at 1-3. It appears from his allegations that he was transferred shortly thereafter. Id. Plaintiff did not initiate this action until March 2, 2020. See generally Comp. Thus, Plaintiff's claims are well beyond the statute of limitations and this action should be dismissed without prejudice as untimely, unless Plaintiff is entitled to equitable tolling.
As noted above, the applicable statute of limitations for a § 1983 claim is derived from Oklahoma law. "As such, state law [also] governs the application of tolling in a civil rights action." Alexander v. Oklahoma, 382 F.3d 1206, 1217 (10th Cir. 2004); see also Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (applying state law tolling rules in § 1983 context).
In general, Oklahoma permits the tolling of a statute of limitations in two circumstances. First, the existence of a "legal disability" provides proper grounds for equitable tolling. See Okla. Stat. tit. 12 § 96 (West 2000). Although the exact definition of this term remains unclear, Oklahoma courts have applied this provision only for plaintiffs whose competency is impaired or who have not reached the age of majority. See e.g., Lovelace v. Keohane, 831 P.2d 624, 629 (Okla. 1992) (finding that those who could conduct their own business affairs over time are sufficiently competent to render them ineligible for "legal disability" tolling)
Second, the Oklahoma discovery rule tolls the statute of limitations "until an injured party knows of, or in the exercise of reasonable diligence, should have known of or discovered the injury, and resulting cause of action." Id. Therefore, if defendants engage in "false, fraudulent or misleading conduct" calculated to lull plaintiffs into sitting on their rights, the limitations period may not be triggered. Jarvis v. City of Stillwater, 732 P.2d 470, 473 (Okla. 1987); see also Hurt v. Garrison, [] 133 P.2d 547, 550 (1942) (holding a statute of limitations tolled during a period of fraudulent concealment).Alexander, 382 F.3d at 1217 (emphasis in original).
The allegations of Plaintiff's Complaint "do not fit within any of these circumstances." See Young v. Davis, 554 F.3d 1254, 1258 (10th Cir. 2009) (affirming dismissal of Bivens claim on § 1915A screening as barred by the statute of limitations). Plaintiff does not claim he is under a "legal disability" or that Defendants engaged in "false, fraudulent[,] or misleading conduct" to lull Plaintiff into sitting on his rights. Id. (quotations omitted); Breedlove v. Costner, 405 F. App'x 338, 342 (10th Cir. 2010). At most, Plaintiff asserts that he was told through "the County Jail's administrative remedy process . . . that no actions would be taken" and that he could not "get [the County Jail] to provide [him] with . . . an administrative remedy process." Comp. at 2, 3. Plaintiff does not indicate Defendants prevented him from pursuing legal action based on the allegations within his Complaint. As Plaintiff's Complaint does not reflect that he is entitled to equitable tolling, this action should be dismissed without prejudice as untimely.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's action be dismissed without prejudice as untimely. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by May 14 , 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
Dated this 24 day of April, 2020.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE