Cox v. Cunningham et al

Filing 5

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff is granted twenty (20) days to show cause why the complaint should not be dismissed as stating no claim for relief. Plaintiff's motion 4 for appointment of counsel is denied without prejudice. Signed by Senior District Judge Sam A. Crow on 4/3/2012. (Mailed to pro se party Dusty J. Cox by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DUSTY J. COX,
Plaintiff,
v.

CASE NO.11-3215-SAC

TY CUNNINGHAM, et al.,
Defendants.

O R D E R
Plaintiff,

a

federal

prisoner

confined

in

a

correctional

medical center in Missouri (MCFP-Springfield), proceeds pro se
seeking damages and injunctive relief for the alleged deprivation of
his constitutional rights.

Plaintiff has paid the initial partial

filing fee assessed by the court under 28 U.S.C. § 1915(b)(1), and
is granted leave to proceed in forma pauperis.

Plaintiff remains

obligated to pay the remainder of the $350.00 district court filing
fee in this civil action, through payments from his inmate trust
fund account as authorized by 28 U.S.C. § 1915(b)(2).
Because plaintiff is a prisoner, the court is required to
screen the complaint and to dismiss it or any portion thereof that
is frivolous, fails to state a claim on which relief may be granted,
or seeks monetary relief from a defendant immune from such relief.
28 U.S.C. § 1915A(a) and (b).
Plaintiff

seeks

damages

on

allegations

of

constitutional

deprivation during his confinement as a pretrial detainee in a
Leavenworth,

Kansas,

correctional

facility

Corrections Corporation of America (CCA-LVN).

operated

by

the

The defendants eight

CCA-LVN medical staff, and three defendants at MCFP-Springfield.
Plaintiff alleges he was denied necessary medical treatment and
accommodation for serious back pain and related infection, citing
the denial of adequate pain medication throughout his CCA-LVN
confinement, and the denial of a wheel chair, hospital bed, and foam
mattress for specific periods.
Having reviewed plaintiff’s allegations, the court finds the
complaint is subject to being summarily dismissed as stating no
claim for relief.
Allegations against CCA-LVN Defendants are time barred
Plaintiff filed his complaint on December 13, 2011.1
allegations

of

misconduct

by

CCA-LVN

defendants

during

His
his

confinement at the CCA-LVN facility between June 15 and December 8,
2009,

however,

clearly

fall

outside

the

two

year

statute

of

limitations for seeking relief. It is well settled in this district
that a two-year statute of limitations applies to civil rights
actions brought pursuant to § 1983.

See Wallace v. Kato, 549 U.S.

384, 387 (2007)(statute of limitations applicable to § 1983 actions
is what state law provides for personal injury torts); Industrial
Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968
(10th Cir.1994)(same for Bivens actions); K.S.A. 60-513(a)(4) (two-

1

While the "mailbox rule" allows a pro se prisoner's filings to
be dated as of the date the prisoner delivers it to prison
authorities or places it in the prison mail system, plaintiff failed
to provide the mandatory certification required for application of
the prisoner mailbox rule in this case. See Prince v. Philpot, 420
F.3d 1158, 1165-67 (10th Cir.2005)(stating requirements for
application of prisoner mailbox rule); United States v. CeballosMartinez, 387 F.3d 1140, 1144-45 (10th Cir.2004)(inmate bears burden
of showing compliance with mailbox rule). The court thus uses the
date the complaint was received and docketed by the court.
2

year statute of limitations for personal injury torts).

Where the

state of limitations defense is obvious from the face of the
complaint,

§

1915(e)

authorizes

sua

sponte

dismissal

of

the

complaint.

See, e.g., Fogle v. Pierson, 435 F.3d 1252, 1258 (10th

Cir.2006).
No cause of action against CCA-LVN defendants
Additionally, plaintiff’s claims for damages from CCA-LVN
defendants appears to be squarely defeated by a recent Supreme Court
decision

holding

that

a

prisoner

could

not

assert

an

Eighth

Amendment Bivens claim for damages against private prison employees.
Minneci v. Pollard, 132 S.Ct. 617 (2012).
No personal jurisdiction over MCFP-Springfield defendants
And

plaintiff’s

claims

for

damages

from

MCFP-Springfield

defendants, while not time barred, are nonetheless subject to being
summarily dismissed without prejudice because this court has no
personal jurisdiction over these defendants.

Dismissal would be

without prejudice to plaintiff pursuing relief in the District Court
for the Western District of Missouri.
Notice and Show Cause Order to Plaintiff
For these reasons, the court directs plaintiff to show cause
why

all

CCA-LVN

defendants

should

not

be

dismissed

because

plaintiff’s allegations state no cognizable federal claim for relief
against any of these defendants, and why all claims against MCFPSpringfield
because

defendants

this

court

should
lacks

not

dismissed

personal

3

without

jurisdiction

prejudice

over

these

defendants.2

The failure to file a timely response may result in

the complaint being dismissed for the reasons stated herein, and
without further prior notice to plaintiff.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to
proceed in forma pauperis (Doc. 2) is granted, with payment of the
remainder of the $350.00 district court filing fee to proceed as
authorized by 28 U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff is granted twenty (20)
days to show cause why the complaint should not be dismissed as
stating no claim for relief; and that plaintiff’s motion for
appointment of counsel (Doc. 4) is denied without prejudice.
IT IS SO ORDERED.
DATED:

This 3rd day of April 2012 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

2

Plaintiff’s motion for appointment of counsel is denied
without prejudice to plaintiff resubmitting this request if the
complaint is not summarily dismissed.
4