Acosta-Felton v. Grinkey et al
MEMORANDUM AND ORDER ENTERED: Defendants' motion 56 to dismiss is granted. Plaintiff's claims against defendants Schoen and Klingele are dismissed as time-barred. The court shall also dismiss plaintiff's 1986 claim against all defendants as time-barred. Signed by Senior District Judge Richard D. Rogers on 2/19/2013. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LARRY GREINKE, et. al.,
Case No. 11-3103-RDR
MEMORANDUM AND ORDER
This is a civil rights action brought by the plaintiff pursuant
to 42 U.S.C. '' 1983, 1985 and 1986.
Plaintiff contends that the
defendant law enforcement officers used excessive force and violated
his constitutional rights on November 10, 2009 at the Riley County
Police Department (RCPD) while he was an inmate.
This matter is
presently before the court upon defendants= motion to dismiss.
Plaintiff, proceeding pro se, filed this case on November 29,
2010 in state court.
At that time, plaintiff named RCPD Officers
Greinke, Kennedy, Myles, Miller and Bailey as defendants.
4, 2011, these defendants were served.
court on May 24, 2011.
The case was removed to this
Counsel was appointed to represent plaintiff
on February 27, 2012.
On June 29, 2012, plaintiff moved to amend his complaint.
sought to add claims against Bradley Schoen, the Director of the RCPD,
and RCPD Officer David Klingele.
O=Hara granted the motion.
On August 3, 2012, Magistrate Judge
In doing so, he stated: ATo be clear, this
order makes no determination one way or another on the timeliness
On August 10, 2012, plaintiff filed his
In Count I of the amended complaint, plaintiff makes claims for
use of excessive force under ' 1983 against Officers Greinke, Kennedy,
Fine and Klingele.
In Count II, plaintiff alleges claims under ' 1983
against Director Schoen for negligent training and supervision.
This claim was not part of plaintiff=s original complaint.
III, plaintiff asserts claims of conspiracy under ' 1985(3) against
Officers Greinke, Kennedy, Fine and Klingele.
Finally, in Count IV,
plaintiff makes claims for conspiracy by omission under ' 1986 against
Officers Grienke, Kennedy, Fine and Klingele.
In this motion, defendants seek dismissal of various counts
because they are barred by the statute of limitations.
Klingele asserts that all of the counts against him (Counts I, III
and IV) should be dismissed due to the statute of limitations.
Director Schoen contends that Count II should be dismissed because
it is barred by the statute of limitations.
Finally, all defendants
argue that Count IV should be dismissed based upon the statute of
In making these arguments, the defendants assert that
the claims made in plaintiff=s amended complaint do not relate back
to the original complaint.
In the context of Fed.R.Civ.P. 12(b)(6), the court accepts all
well-pleaded factual allegations in the complaint as true and view
them in the light most favorable to the plaintiff to determine whether
the statute of limitations has been met.
See Sunrise Valley, LLC
v. Kempthorne, 528 F.3d 1251, 1254 (10th Cir. 2008).
The court shall initially consider the ' 1983 and ' 1985(3)
against defendant Schoen and Klingele.
There is no dispute
that plaintiff added defendants Schoen and Klingele after the statute
of limitations had run.
The statute of limitations for ' 1983 and
1985(3) claims Ais drawn from the personal-injury statute of the state
in which the federal district court sits.@
519 F.3d 1078, 1082 (10th Cir. 2008).
Mondragon v. Thompson,
The court thus applies Kansas=
two-year statute of limitations for personal injury actions. See Kan.
Stat. Ann. ' 60B513(a)(4).
The amended complaint was not filed until
August 10, 2012, well over two years after the incident that gives
rise to these claims.
Plaintiff contends, however, that his claims
against these defendants should not be dismissed as time-barred
because his amended complaint Arelates back to the date of the
original pleading@ under Fed.R.Civ.P. 15(c).
Rule 15(c)(1)(C) provides that an amendment that adds a new
defendant but arises out of the same conduct relates back if the new
defendant A(1) received such notice of the action that [he] will not
be prejudiced in defending on the merits; and (2) knew or should have
known that the action would have been brought against [him], but for
a mistake concerning the proper party=s identity.@
actual knowledge of the complaint and constructive knowledge that
the plaintiff made a mistake in failing to name him must occur within
120 days of the filing of the original complaint.
4(m); Fed.R.Civ.P. 15(c).
Defendants Schoen and Klingele have raised three arguments why
the claims against them do not relate back and should therefore be
First, they contend there can be no showing that they
had knowledge of the plaintiff=s claim within 120 days of the filing
of the original complaint because the original defendants were not
served until 156 days after the filing of the original complaint.
Second, they argue that relation back is not proper here under Rule
15(c)(1)(C) because there was no mistake of identity in failing to
name them as defendants in the original complaint.
assert that plaintiff has failed to prove that they knew or should
have known that plaintiff intended to assert claims against them.
The court is persuaded that the relation back provisions of
Fed.R.Civ.P. 15(c) do not apply because these defendants did not
receive notice of plaintiff=s action within 120 days as required by
The original defendants were not served until
156 days after the filing of the original complaint so these
defendants could not have received the notice necessary for relation
back under Rule 15(c)(1)(C).
In an effort to avoid this problem, plaintiff has suggested that
the 120 day period of Rule 4(m) runs from the date of the removal
of this case.
Plaintiff relies upon 8 U.S.C. ' 1448 for support of
The court finds no merit to this contention.
Section 1448 provides as follows:
In all cases removed from State court to any district court
of the United States in which any one or more of the
defendants has not been served with process or in which
the service has not been perfected prior to removal, or
in which process served proves to be defective, such
process or service may be completed or new process issued
in the same manner as in cases originally filed in such
The court is not persuaded that ' 1448 impacts this decision.
Here, service on all defendants named in the original complaint was
effected prior to removal.
Thus, the provisions of ' 1448 are
irrelevant because no additional time was needed to perfect service.
The 120 days began to run from the filing of the original complaint,
not from the date of removal.
Accordingly, since service was made on the original defendants
over 120 days after the filing of the original complaint, then the
new defendants could not possibly have known or should have known
that any claims would be brought against them.
They are entitled
to dismissal of plaintiff=s claims because they do not relate back
to filing of the original complaint and are, therefore, time-barred
by the applicable statutes of limitations.
With this decision, the
court need not consider the other Arelation back@ arguments raised
by the defendants.
The court next turns to the plaintiff=s ' 1986 claim.
defendants contend that this claim is barred by the statute of
The statute of limitations for a ' 1986 claim is one
See 42 U.S.C. ' 1986(ABut no action under the provisions of
this section shall be sustained which is not commenced within one
year after the cause of action has accrued.@).
contend that plaintiff=s ' 1986 claim is time-barred because plaintiff
failed to raise it until August 12, 2012.
The defendants argue that
relation back under Rule 15(c) does not save the claim because
plaintiff filed his initial complaint on November 29, 2010, over one
year after the incident that led to these claims.
two arguments in response.
First, he suggests that he was unaware
of the facts that would support a ' 1986 claim until some time after
November 10, 2009.
He asserts that he could not have known the
necessary facts until after January 19, 2010.
Second, he contends
that equitable tolling precludes dismissal of his ' 1986 claim.
suggests that his inability to read, speak and write the English
language prevented a timely assertion of this claim.
The court shall begin with the determination of the accrual of
plaintiff=s ' 1986 claim.
The accrual of federal causes of action
is controlled by federal law.
195 F.3d 553, 557 (1999).
Beck v. City of Muskogee Police Dept.,
A claim for a civil rights violation
generally accrues when the plaintiff knows or should have known his
civil rights had been violated.
Claims arising out of police
actions toward a criminal suspect are presumed to accrue when the
actions actually occur.
Johnson v. Johnson Cnty. Comm=n Bd., 925 F.2d
1299, 1301 (10th Cir. 1991).
The court is confident that plaintiff=s claims accrued on
November 10, 2009, the date of the alleged incident.
See Nieves v.
conspiracy to use excessive force. . .accrue[s] on the date on which
these acts occur because that is when the plaintiff becomes aware
that his rights have been violated.@); Golino v. City of New Haven,
761 F.Supp. 962, 966 (D.Conn. 1991)(accrual for claims of conspiracy
and excessive force begin to run on day of arrest).
believes that plaintiff had actual knowledge of the elements of his
claim of failure to prevent conspiracy on the date of the incident.
Since he filed his original complaint after the expiration of the
one-year statute of limitations, this claim is time-barred absent
the application of equitable tolling.
The question of whether tolling applies to ' 1986 claims is not
Several courts, relying upon the language in the statute,
have concluded that it does not provide for tolling of the statute
Bieros v. Nicola, 839 F.Supp. 332, 337 (E.D.Pa.
1993)(AWhile plaintiff states >extraordinary circumstances' as to why
he filed his claim at the >first available opportunity,= it is clear
from the language of the statute that it does not provide for tolling
of the statute of limitations.@); Johns v. Home Depot U.S.A., Inc.,
221 F.R.D. 400, 407 (S.D.N.Y. 2004);
Smith v. Orange County, 1995
WL 405018 at *1 (E.D.N.Y. June 27, 1995).
Other courts determined
that ' 1986 is subject to federal equitable tolling principles.
e.g., Ellis v. City of San Diego, 176 F.3d 1183, 1189 n. 3 (9th Cir.
In Ellis, the Ninth Circuit determined that A[e]quitable
tolling of the statute of limitations is a defense to all federal
statutes of limitations, even those expressly contained within a
given cause of action, unless tolling would be inconsistent with the
The Court further concluded there was no
evidence that Congress intended to disallow equitable tolling in
civil rights claims.
This court is inclined to believe, based upon the language in
the statute, that tolling should not be applied for ' 1986 claims.
However, we need not reach that issue because we do not find that
plaintiff has established that he is entitled to equitable tolling.
Federal law provides that a litigant seeking equitable tolling bears
the burden of establishing two elements: (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance
stood in his way.@
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
The only possible basis for tolling raised by the plaintiff is that
he has difficulty reading and writing English and has Avery limited
plaintiff=s ability to file his other claims in a timely fashion, the
court is not persuaded that he was somehow prevented from pursuing
His language barrier is not such Aan extraordinary
circumstance@ that precluded him discovering his alleged injury
through the exercise of reasonable diligence.
court finds that plaintiff=s ' 1986 must be dismissed as time-barred
under the statute of limitations.
In sum, the court shall dismiss plaintiff=s claims against
defendants Schoen and Klingele as time-barred.
The court shall also
IT IS THEREFORE ORDERED that defendants= motion to dismiss (Doc.
# 56) be hereby granted.
Plaintiff=s claims against against
defendants Schoen and Klingele are hereby dismissed as time-barred.
The court shall also dismiss plaintiff=s ' 1986 claim against all
defendants as time-barred.
IT IS SO ORDERED.
Dated this 19th day of February, 2013 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
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