Dyson v. Gilbert et al

Filing 5

OPINION AND ORDER DISMISSING WITH PREJUDICE 1 Complaint pursuant to 28 U.S.C. § 1915A. Signed by Senior Judge James T Moody on 2/4/2013. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ZAR DONTAY DYSON,
Plaintiff,
v.
MARION POLICE DEPARTMENT,
et al,
Defendants.

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No. 1:13 CV 23

OPINION and ORDER
Zar Dontay Dyson, a pro se prisoner, filed a complaint under 42 U.S.C. § 1983.
(DE # 1.) Pursuant to 28 U.S.C. § 1915A, the court must review the complaint and
dismiss it if the action is frivolous or malicious, fails to state a claim for relief, or seeks
monetary relief against a defendant who is immune from such relief. 28 U.S.C.
§ 1915A(a), (b). Courts apply the same standard under 28 U.S.C. § 1915A as when
deciding a motion under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6). Lagerstrom v.
Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal, the complaint must
state a claim for relief that is plausible on its face. Bissessur v. Indiana Univ. Bd. of Trs.,
581 F.3d 599, 602-03 (7th Cir. 2009). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 603. In other words, the plaintiff
“must do better than putting a few words on paper that, in the hands of an imaginative
reader, might suggest that something has happened to her that might be redressed by
the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in

original). Nevertheless, the court must bear in mind that a pro se complaint is entitled to
liberal construction, “however inartfully pleaded.” Erickson v. Pardus, 551 U.S. 89, 94
(2007).
Here, Dyson claims that officers from the Marion Police Department, Grant
County Sheriff’s Department, and Indiana State Police committed numerous Fourth
Amendment violations in connection with his arrest on December 25, 2010. Specifically,
he alleges that the officers improperly searched his vehicle, falsely arrested him, and
used excessive force in effectuating his arrest.1
The Fourth Amendment guarantees the “right of people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
CONST. amend. IV. Claims for false arrest, excessive force, and other Fourth Amendment
violations accrue at the time of the violation. Dominguez v. Hendley, 545 F.3d 585, 589
(7th Cir. 2008). In Indiana such claims must be brought within two years. Behavioral Inst.
of Ind., LLC v. Hobart City of Common Council, 406 F.3d 926, 929 (7th Cir. 2005). Although
timeliness is an affirmative defense, dismissal at the pleading stage is appropriate if the
defense is apparent from the complaint itself. See Walker v. Thompson, 288 F.3d 1005,
1010 (7th Cir. 2002). Here, it is apparent that Dyson is complaining about an arrest that
occurred in December 2010, and he tendered his complaint to prison officials for

1

Documents Dyson submitted with the complaint indicate that he was arrested
for the attempted murder of three police officers; he allegedly led the police on a highspeed chase and then exited his vehicle with an assault rifle, at which point he was shot
several times by the officers. (See DE # 3.) According to medical records he submitted,
he later tested positive for opiates and cocaine. (DE # 1 at 18.)
2

mailing on January 23, 2013. (DE # 1 at 9.) His claims were not brought within the twoyear statute of limitations and are therefore untimely.
For these reasons, the complaint (DE # 1) is DISMISSED WITH PREJUDICE
pursuant to 28 U.S.C. § 1915A.
SO ORDERED.
Date: February 4, 2013
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT