Matthews v. Rice et al

Filing 45

MEMORANDUM AND ORDER ENTERED: Defendants' motion 36 to dismiss is granted. Plaintiff's claims are barred by the statute of limitations. Signed by Senior District Judge Richard D. Rogers on 9/18/2013. (Mailed to pro se party Gary L. Matthews by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GARY L. MATTHEWS,
Plaintiff,
v.
ELIZABETH RICE, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
_

Case No. 11-3221-RDR

MEMORANDUM AND ORDER
This matter is presently before the court upon defendants= motion
to dismiss plaintiff=s claims under 42 U.S.C. ' 1983 as barred by the
statute of limitations.

Plaintiff is an inmate in the custody of

the Kansas Department of Corrections (KDOC) and is incarcerated at
the Hutchinson Correctional Facility in Hutchinson, Kansas.

The

defendants are the KDOC and various state officials employed by the
KDOC.

Proceeding pro se, plaintiff contends that the defendants

have erroneously classified him as a sex offender.

He further claims

that the defendants knew he did not meet the requirements of a sex
offender and continued to classify him as such based upon a KDOC
policy that all inmates charged with sex offenses, whether convicted
or not, shall be registered as sex offenders.

He asserts claims

under ' 1983, contending that the actions of the defendants have
violated his rights under the First Amendment, substantive due
process, procedural due process and equal protection.
compensatory

and

punitive

prospective relief.

damages

along

with

He seeks

injunctive

and

I.
In his complaint, plaintiff alleges that in 1996 he was charged
with aggravated kidnapping and rape.

He was acquitted of rape, but

convicted of aggravated kidnapping.

He was incarcerated with the

KDOC.

After incarceration, he was designated by the KDOC as a sex

offender.

He requested sex offender override in 2004.

was denied on January 13, 2004.

This request

He was released from prison on

November 29, 2006.
In 2007, he was charged with robbery and ultimately convicted.
He was sentenced in 2008 and again placed in the custody of the KDOC.
Subsequently, in 2010, he was notified that he would be treated again
as a sex offender.

He again requested sex offender override in 2010,

and this request was denied on September 9, 2010.

Plaintiff did not

dispute either the 2004 or the 2010 final order.
Plaintiff once again sought sex offender override in 2011, and
this request was denied on June 1, 2011.

Following that order, he

filed a petition with the Reno County District Court on July 13, 2011
challenging the decision made by the KDOC.

The state district court

dismissed plaintiff=s complaint, finding that plaintiff=s failure to
exhaust the administrative process by challenging the 2004 order
deprived the court of subject matter jurisdiction.

The court

further noted that even if the A2004 override denial did not work that
effect, petitioner=s subsequent failure to appeal the 2010 denial and
2

untimely effort to appeal the 2011 denial would similarly deprive
the court of jurisdiction.@

Plaintiff filed the instant case on

December 20, 2011.
II.
The defendants contend that plaintiff=s claims are barred by the
applicable statute of limitations, which is two years.

They argue

that plaintiff=s delay in waiting seven years to challenge the KDOC=s
original denial of sex offender override in 2004 renders the instant
claims barred by the statute of limitations.
Pro se complaints are held to Aless stringent standards than
formal pleadings drafted by lawyers.@
519, 520 (1972).

Haines v. Kerner, 404 U.S.

A pro se litigant is entitled to a liberal

construction of his pleadings.

See Trackwell v. U.S. Gov=t, 472 F.3d

1242, 1243 (10th Cir. 2007)(ABecause Mr. Trackwell proceeds pro se,
we review his pleadings and other papers liberally and hold them to
a less stringent standard than those drafted by attorneys.@).

If a

court can reasonably read a pro se complaint in such a way that it
could state a claim on which it could prevail, it should do so despite
Afailure to cite proper legal authority ... confusion of various legal
theories

...

requirements.@

or

[plaintiff=s]

unfamiliarity

with

pleading

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

But it is not the proper role of a district court to Aassume the role
of advocate for the pro se litigant.@
3

Id.

As it relates to motions

to dismiss generally, Athe court accepts the well-pleaded allegations
of the complaint as true and construes them in the light most
favorable to the plaintiff.@

Ramirez v. Dept. of Corr., Colo., 222

F.2d 1238, 1240 (10th Cir. 2000).

AWell-pleaded@ allegations are

those that are facially plausible such that Athe court [can] draw the
reasonable inference that the defendant is liable for the misconduct
alleged.@

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

While the statute of limitations is generally an affirmative
defense, it may also sometimes Abe appropriately resolved on a
Fed.R.Civ.P. 12(b) motion.@

Aldrich v. McCulloch Prop., Inc., 627

F.2d 1036, 1041 n. 4 (10th Cir. 1980).

Specifically, Awhen the dates

given in the complaint make clear that the right sued upon has been
extinguished, the plaintiff has the burden of establishing a factual
basis for tolling the statute.@

Id.

The Alength of the limitations

period@ is a question governed by state law.
U.S. 261, 269 (1985).

Wilson v. Garcia, 471

The Tenth Circuit Court of Appeals has ruled

that ' 1983 civil right complaints Ashould be characterized as actions
for injury to the rights of another@ and are therefore governed by
K.S.A. ' 60B513(a)(4).

Hamilton v. City of Overland Park, Kan., 730

F.2d 613, 614 (10th Cir. 1984).

The applicable length of time,

according to the statute, is two years.

See K.S.A. ' 60-513(a)(4).

Additionally, for the purpose of the statute of limitations, ' 1983
claims accrue A>when the plaintiff knows or has reason to know of the
4

injury which is the basis of his action.=@

Johnson v. Johnson Cnty.

Comm=n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991)(quoting Bireline v.
Seagondollar, 632 F.2d 185, 191 (2nd Cir. 1980)).
III.
The defendants point to Romero v. Lander, 461 Fed.Appx. 661 (10th
Cir.), cert. denied, 133 S.Ct. 212 (2012) for support.

In Romero,

the Tenth Circuit ruled that plaintiff=s challenge under ' 1983 to
his sex offender classification accrued when he was classified as
a sex offender following an administrative hearing in 2000, not when
the KDOC notified him in 2009 that it had reviewed his sex offender
treatment and monitoring program file and determined to reimpose the
sex offender classifications.

Romero, 461 Fed.Appx. at 668.

The

Court noted that plaintiff=s alleged injuries stemmed from the
original 2000 designation.
found

that

limitations.

plaintiff=s

Id. at 669.

claims

were

Accordingly, the Court

barred

by

the

statute

of

Id.

The court agrees with the defendants and finds that the
reasoning of Romero controls.

Here, plaintiff knew or should have

known of the alleged constitutional violations giving rise to his
claims at the time when he was first classified as a sex offender.
He requested sex offender override in 2004 and failed to take any
action concerning the denials of his requests until 2011 when he filed
a

petition

in

state

court.

His
5

efforts

to

challenge

the

classification came long after the expiration of the two-year statute
of limitations.
Plaintiff has suggested that the continuing violation doctrine
should apply to his claims.

This court is not persuaded that the

continuing violation doctrine is applicable to claims under ' 1983.
See Mercer-Smith v. New Mexico Children, Youth and Families Dept.,
416 Fed.Appx. 704, 712 (10th Cir. 2011).

However, even if it applies,

the exception is triggered by a continuous series of unlawful acts,
not by the continuing effects of the original violation.
Parkhurst v. Lampert, 264 Fed.Appx. 748, 749 (10th Cir. 2008).

See
In

this case, plaintiff is alleging the same ill effects from the first
denial of his request for sex offender status override in 2004.

The

constitutional claims asserted by plaintiff all arise from the KDOC=s
2004 decision.

Accordingly, the court does not find that the

continuing violation doctrine applies.

Accordingly, the court must

dismiss plaintiff=s claims because they are barred by the two-year
statute of limitations.
IT IS THEREFORE ORDERED that defendants= motion to dismiss (Doc.
# 36) be hereby granted.

Plaintiff=s claims are barred by the statute

of limitations.

6

IT IS SO ORDERED.
Dated this 18th day of September, 2013, at Topeka, Kansas.

s/Richard D. Rogers
United States District Judge

7