Priest v. Tobin et al

Filing 29

ORDER that the Recommendation on defendants Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Docket No. 22 is ACCEPTED. It is further Docket No. 14 is GRANTED. It is further ORDERED that this case is DISMISSED with prejudice and shall be closed in its entirety. It is further ORDERED that, within 14 days of the entry of judgment, defendant may have its costs by filing a bill of costs with the Clerk of the Court, by Judge Philip A. Brimmer on 1/9/2014.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-00779-PAB-KMT
JAMES C. PRIEST, III,
Plaintiff,
v.
OFF. T. TOBIN #0705, and
OFF. BRIAN HUSUM #07049,
Defendants.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge [Docket No. 22] (the “Recommendation”) filed on August 19, 2013.
The magistrate judge recommends that the Court grant the Motion to Dismiss Pursuant
to Fed. R. Civ. P. 12(b)(6) [Docket No. 14] filed by defendants T. Tobin and Brian
Husum. On August 27, 2013 plaintiff filed a pleading stating that he was contesting “the
motion to dismiss this case 13-00779, based on a statute of limitations time restraint.”
Docket No. 24. Defendant has filed a response to plaintiff’s pleading. Docket No. 25.
In light of plaintiff’s pro se status, the Court reviews his filings liberally. See Haines v.
Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir.
1991).
The underlying facts are set forth in the Recommendation and will not be
restated here. See Docket No. 22 at 1-2. As a threshold matter, the proper standard
for reviewing the Recommendation is in some doubt. While plaintiff’s objection was

timely, “a party’s objections to the magistrate judge’s report and recommendation must
be both timely and specific to preserve an issue for de novo review by the district court .
. . .” United States v. One Parcel of Real Property Known As 2121 East 30th Street,
Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996) (emphasis added). Plaintiff does not
object to any specific aspect of the Recommendation and his arguments appear to be
in response to defendant’s motion to dismiss. However, the Court need not decide
whether plaintiff’s objections are sufficient to preserve de novo review. Even under that
standard, the Court finds no error in the Recommendation.
The Recommendation found that plaintiff’s claims were barred by the statute of
limitations. Docket No. 22 at 4-5. The Recommendation noted that plaintiff’s complaint
was filed on March 26, 2013 and specifically concluded that, because the acts forming
the basis of plaintiff’s claims occurred on September 27, 2008, plaintiff’s claims were
barred by the statute of limitations. Id.; see Colo. Rev. Stat. 13-80-102(1)(g). With
respect to the statute of limitations issue, plaintiff argues that his claim is based on
defendants’ actions which resulted in his unlawful incarceration. Docket No. 24 at 1.
“State statutes of limitations applicable to general personal injury claims supply
the limitations periods for [42 U.S.C.] § 1983 claims.” Beck v. City of Muskogee Police
Dep’t, 195 F.3d 553, 557 (10th Cir. 1999). Therefore, in this case, plaintiff’s § 1983
claims are subject to a two-year statute of limitations. See Colo. Rev. Stat.
§ 13-80-102(1)(g) (“All actions upon liability created by a federal statute where no
period of limitation is provided in said federal statute” and “regardless of the theory
upon which suit is brought . . . shall be commenced within two years.”); see also Hunt v.

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Bennett, 17 F.3d 1263, 1265 (10th Cir. 1994) (finding that Ҥ 1983 claims are best
characterized as personal injury actions and we therefore apply” the State of Colorado’s
two-year statute of limitations (citation omitted)). Plaintiff’s complaint contains no basis
for equitable tolling or application of Colorado’s revival statute. See Colo. Rev. Stat. §
13-80-111.
Federal law, however, “governs the time of accrual of § 1983 claims.” Beck, 195
F.3d at 557. Generally, a § 1983 claim “accrued when [plaintiff] knew or should have
known that his constitutional rights had allegedly been violated.” Parkhurst v. Lampert,
264 F. App’x 748, 749 (10th Cir. 2008) (unpublished) (citing Beck, 195 F.3d at 557). In
the Fourth Amendment context, claims “arising out of . . . search and seizure . . . are
presumed to have accrued when the actions actually occur.” Johnson v. Johnson Cnty.
Comm’n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991).
Plaintiff has provided no basis to indicate that this presumption does not apply in
the instant case. See Beck, 195 F.3d at 558. Plaintiff’s complaint clearly indicates that
defendants stopped him, searched his car, and arrested him on September 27, 2008
and that, as a result, he was shortly thereafter charged with possession and driving
without a license. Docket No. 1 at 3. To the extent plaintiff’s objection can be
construed as arguing that the continuing violation doctrine should apply because
plaintiff’s injury continued throughout his period of incarceration, the Court rejects the
argument. The Tenth Circuit has expressly declined to decide whether the continuing
violation doctrine applies to § 1983 claims. See Mata v. Anderson, 635 F.3d 1250,
1253 (10th Cir. 2011). Moreover, the continuing violation doctrine would not preserve

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plaintiff’s claims because the doctrine is “‘triggered by continual unlawful acts, not by
continual ill effects from the original violation.’” Id. (quoting Parkhurst, 264 F. App’x at
749). Accordingly, because plaintiff’s claims accrued on September 27, 2008, the
March 26, 2013 filing of those claims falls outside the two-year statute of limitations.
Thus, the Court finds no error with the Recommendation.
For the foregoing reasons, it is
ORDERED that the Recommendation on defendant’s Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(6) [Docket No. 22] is ACCEPTED. It is further
ORDERED that defendant’s Motion to Dismiss Pursuant to Fed. R. Civ. P.
12(b)(6) [Docket No. 14] is GRANTED. It is further
ORDERED that this case is DISMISSED with prejudice and shall be closed in its
entirety. It is further
ORDERED that, within 14 days of the entry of judgment, defendant may have its
costs by filing a bill of costs with the Clerk of the Court.

DATED January 9, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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