BAXTER v. BRIZZY

Filing 9

Entry and Order Dismissing Action - Dismissal of the action pursuant to 28 U.S.C. § 1915A is now mandatory. Judgment consistent with this Entry shall now issue. Copy to plaintiff via US Mail. Signed by Judge William T. Lawrence on 12/20/2012.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
RONALD BAXTER,
Plaintiff,
vs.
CARL BRIZZY,
Defendant.

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2:12-cv-00342-WTL-WGH

Entry and Order Dismissing Action
I.
The plaintiff Ronald Baxter, a state prisoner, seeks damages from the former
Marion County Prosecuting Attorney because that official allegedly provided the
plaintiff’s photograph to television stations without his consent for a story on June
17, 2010, saying the plaintiff was wanted by child support authorities for delinquent
child support payments at a time when his wages were being garnished for child
support.
Because Baxter is a Aprisoner@ as defined by 28 U.S.C. ' 1915(h), the court
has screened his complaint as required by 28 U.S.C. ' 1915A(b). Pursuant to this
statute, "[a] complaint is subject to dismissal for failure to state a claim if the
allegations, taken as true, show that plaintiff is not entitled to relief." Jones v. Bock,
127 S. Ct. 910, 921 (2007).
Whether a complaint states a claim is a question of law. Morton v. Becker,
793 F.2d 185, 187 (8th Cir. 1986). In applying this standard, A[a] complaint must
always . . . allege >enough facts to state a claim to relief that is plausible on its
face.’” Limestone Development Corp. v. Village of Lemont, Ill., 520 F.3d 797, 803 (7th
Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The
plausibility requirement of Rule 8(a)(2) is defeated, however, when a plaintiff pleads
himself out of court “by alleging facts that show there is no viable claim.@ Pugh v.
Tribune Co., 521 F.3d 686, 699 (7th. Cir. 2008). One such circumstance, though
infrequent, occurs where a complaint shows on its face that the claim is barred by
the applicable statute of limitations.

The claim here is asserted pursuant to 42 U.S.C. § 1983. A suit under ' 1983
must be filed within the time allowed by state law for personal injury actions.
Wilson v. Garcia, 471 U.S. 261 (1985). In Indiana, that period is two (2) years.
Logan v. Wilkins, 644 F.3d 577, 581 (7th Cir. 2011); Behavioral Inst. of Ind., LLC v.
Hobart City of Common Council, 406 F.3d 926, 929 (7th Cir. 2005); Forman v.
Richmond Police Department, 104 F.3d 950 (7th Cir. 1997) ("[T]he two-year Indiana
statute of limitations for personal injuries (IND. CODE ' 34-1-2-2) applies to ' 1983
claims.") (citing Perez v. Sifel, 57 F.3d 503, 505 (7th Cir. 1995)).
The plaintiff’s claim accrued on June 17, 2010. Applying the prison mailbox
rule, see Houston v. Lack, 487 U.S. 266, 275-76 (1988), this action can be considered to
have been filed on November 16, 2012, the date the plaintiff signed the complaint.
This was five months beyond the expiration of Indiana=s 2-year statute of
limitations.
Although the expiration of the statute of limitations is an affirmative defense,
reliance on such barrier is appropriate in circumstances such as those presented by
the complaint because when a plaintiff Apleads facts that show his suit is time
barred or otherwise without merit, he has pleaded himself out of court.@ Tregenza v.
Great American Communications Co., 12 F.3d 717, 718 (7th Cir. 1993), cert. denied,
511 U.S. 1084 (1994).
II.
A.
District judges have discretion to invoke a statute of limitations sua sponte if
the defense is apparent from the complaint or another document in the court’s files.
See Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002). That is the case here, and
for the reasons explained in Part I of this Entry, the amended complaint fails to
state a claim upon which relief may be granted. Dismissal of the action pursuant to
28 U.S.C. § 1915A is now mandatory. Gladney v. Pendleton Corr. Facility, 302 F.3d
773, 775 (7th Cir. 2002).
B.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

12/20/2012
Date: __________________

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Distribution:
Ronald Baxter, Jr.
Reg. No. 220428
Putnamville Correctional Facility
1946 West U.S. Hwy 40
Greencastle, IN 4613