Perosky v. Merrillville Police Department et al

Filing 5

OPINION AND ORDER DISMISSING pursuant to 28 U.S.C. § 1915A. Signed by Chief Judge Philip P Simon on 9/21/2016. (cc: Pla)(lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
STEPHEN T. PEROSKY,
Plaintiff,
vs.
MERRILLVILLE POLICE
DEPARTMENT, et al.,
Defendants.

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CAUSE NO. 3:16CV618-PPS

OPINION AND ORDER
Stephen T. Perosky, a pro se prisoner, filed a complaint alleging that Merrillville Police
Officers used excessive force while arresting him on July 18, 2011. “A document filed pro se is
to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quotation marks and citations omitted). Nevertheless, pursuant to 28 U.S.C. §1915A,
the court must review the merits of a prisoner complaint and dismiss it if the action is frivolous
or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief
against a defendant who is immune from such relief. “In order to state a claim under §1983 a
plaintiff must allege: (1) that defendants deprived him of a federal constitutional right; and (2)
that the defendants acted under color of state law.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir.
2006).
Perosky signed his complaint on September 9, 2016, more than five years after his claims
arose. Although the statute of limitations is an affirmative defense, dismissal is appropriate
where the complaint makes clear that the claims are time-barred. Cancer Foundation, Inc. v.
Cerberus Capital Management, LP, 559 F.3d 671, 674 (7th Cir. 2009). Indiana’s two-year

limitations period applies to this case. Behavioral Inst. of Ind., LLC v. Hobart City of Common
Council, 406 F.3d 926, 929 (7th Cir. 2005). Therefore, these claims are untimely.
Though it is usually necessary “to give pro se litigants one opportunity to amend after
dismissing a complaint[,] that’s unnecessary where, as here, it is certain from the face of the
complaint that any amendment would be futile or otherwise unwarranted.” Carpenter v. PNC
Bank, Nat. Ass’n, No. 633 Fed. Appx. 346, 348 (7th Cir. Feb. 3, 2016) (quotation marks
omitted). See Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013) and Hukic v. Aurora Loan
Servs., 588 F.3d 420, 432 (7th Cir. 2009) (“[C]ourts have broad discretion to deny leave to
amend where . . . the amendment would be futile.”). Here, the complaint was filed more than
three years after the statute of limitations expired and it is legally frivolous to file suit so long
after the deadline has expired.
For these reasons, this case is DISMISSED pursuant to 28 U.S.C. § 1915A.
SO ORDERED.
ENTERED: September 21, 2016
/s/ Philip P. Simon
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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