Tillotson v. Hawkins

Filing 4

ORDER of Dismissal. ORDERED that the Prisoner Complaint and the action are dismissed as legally frivolous. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice, by Judge Lewis T. Babcock on 8/10/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02012-BNB
CHRIS TILLOTSON,
Plaintiff,
v.
MIKE HAWKINS,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Chris Tillotson, is a patient at the Colorado Mental Health Institute at
Pueblo, Colorado. Mr. Tillotson has filed pro se a Prisoner Complaint (ECF No. 1)
pursuant to 42 U.S.C. § 1983 alleging that his rights under the United States
Constitution were violated in June 2003. He seeks damages as relief.
Pursuant to 28 U.S.C. § 1915A, the Court is required to review the Prisoner
Complaint because Mr. Tillotson is a prisoner and he is seeking redress from an officer
or employee of a governmental entity. Pursuant to § 1915A(b)(1), the Court is required
to dismiss the Prisoner Complaint, or any portion of the Prisoner Complaint, that is
frivolous. A legally frivolous claim is one in which the plaintiff asserts the violation of a
legal interest that clearly does not exist or asserts facts that do not support an arguable
claim. See Neitzke v. Williams, 490 U.S. 319, 324 (1989). For the reasons stated
below, the Court will dismiss the Prisoner Complaint as legally frivolous.
The Court must construe the Prisoner Complaint liberally because Mr. Tillotson is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the Prisoner Complaint
reasonably can be read “to state a valid claim on which the plaintiff could prevail, [the
Court] should do so despite the plaintiff’s failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. However, the Court
should not be an advocate for a pro se litigant. See id.
Mr. Tillotson asserts one claim for relief in the Prisoner Complaint alleging that
Defendant, a police officer, subjected him to excessive force on June 12, 2003. Mr.
Tillotson specifically alleges that he was hit in the back of the head with a nightstick and
shot from behind three times for no reason.
Mr. Tillotson’s allegations in the Prisoner Complaint do not support an arguable
claim against Defendant because the excessive force claim clearly is barred by the twoyear statute of limitations that applies to § 1983 actions in Colorado. See Blake v.
Dickason, 997 F.2d 749, 750-51 (10th Cir. 1993). Although the statute of limitations is
an affirmative defense, see Fed. R. Civ. P. 8(c)(1), the Court may dismiss a complaint
sua sponte on the basis of an affirmative defense if the defense is “obvious from the
face of the complaint” and “[n]o further factual record [is] required to be developed in
order for the court to assess the [plaintiff’s] chances of success.” Yellen v. Cooper, 828
F.2d 1471, 1476 (10th Cir. 1987); see also Fratus v. DeLand, 49 F.3d 673, 676 (10th Cir.
1995) (stating that dismissal under § 1915 on the basis of an affirmative defense is
permitted “when the claim’s factual backdrop clearly beckons the defense”).
It is obvious on the face of the Prisoner Complaint that Mr. Tillotson’s excessive
force claim against Defendant accrued on June 13, 2003, when Mr. Tillotson contends
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he was subjected to excessive force. “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.” Smith v. City of Enid, 149 F.3d
1151, 1154 (10th Cir. 1998) (citation and quotation marks omitted). Thus, “[c]laims
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 v. Johnson County Comm’n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991).
Even if the excessive force claim Mr. Tillotson asserts against Defendant did not
accrue on June 12, 2003, for some reason, Mr. Tillotson’s prior filings in the District of
Colorado demonstrate that he has been aware of his excessive force claim against
Defendant for a number of years. Because the Court may take judicial notice of its own
records and files that are part of the Court’s public records, see St. Louis Baptist
Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979), the Court
takes judicial notice that Mr. Tillotson filed a complaint in March 2004 complaining, in
part, about Defendant’s alleged use of excessive force on June 13, 2003. See Tillotson
v. Englewood Police Dept., No. 04-cv-00552-ZLW (D. Colo. Aug. 25, 2004). Mr.
Tillotson initiated another action in 2009 in which he alleged that he was shot by
Defendant on June 12, 2003. See Tillotson v. Hawkens, No. 09-cv-00104-ZLW (D.
Colo. Mar. 4, 2009). Although case number 04-cv-00552-ZLW and case number 09-cv00104-ZLW both were dismissed without prejudice, those cases clearly demonstrate
that Mr. Tillotson’s excessive force claim against Defendant accrued long ago.
Because it is clear that the instant action was not filed within two years after Mr.
Tillotson’s claim against Defendant accrued, the action is barred by the statute of
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limitations. The Court will dismiss the action as legally frivolous because Mr. Tillotson
asserts facts that do not support an arguable claim.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and therefore in forma pauperis
status will be denied for the purpose of appeal. See Coppedge v. United States, 369
U.S. 438 (1962). If Plaintiff files a notice of appeal he also must pay the full $455
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24. Accordingly, it is
ORDERED that the Prisoner Complaint and the action are dismissed as legally
frivolous pursuant to 28 U.S.C. § 1915A(b)(1). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this 10th day of

August

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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