McDowell v. Johnson County Sheriff's Office

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

MICHAEL D. MCDOWELL, Plaintiff, v. CASE NO. 20-3308-SAC JOHNSON COUNTY SHERIFF’S OFFICE, et al.,

Defendants.

ORDER TO SHOW CAUSE This matter is a civil rights action filed under 42 U.S.C. § 1983.

Plaintiff proceeds pro se, and his fee status is pending. Plaintiff is a detainee in the Johnson County Adult Detention Cente. He alleges a violation of his rights in that facility arising from a failure to provide adequate medical care. Plaintiff states the events occurred in 2009 or 2010. He seeks monetary damages.

Screening Under 28 U.S.C. § 1915A, the court must examine “before docketing, if feasible, or in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Following this review, the court must dismiss the action if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or if it “seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

Statute of limitations The statute of limitations applicable to § 1983 actions is 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).

While state law governs 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 that the action is barred by the statute of limitations. Id. at 1258–59.

Because plaintiff’s claims arose no later than 2010, his complaint, filed in December 2020, is barred by the two-year limitation period and is subject to dismissal for failure to state a claim for relief. Plaintiff will be given an opportunity to show cause why this matter should not be dismissed. The failure to file a timely reply will result in the dismissal of this matter without additional notice.

IT IS THEREFORE ORDERED THAT plaintiff is granted to and including dismissed.

IT IS SO ORDERED.

DATED: This 16th day of December, 2020, at Topeka, Kansas.

S/ Sam A. Crow SAM A. CROW U.S. Senior District Judge