Murphy (ID 0110894) v. Kansas, State of et al

Filing 7

ORDER DISMISSING CASE. Signed by District Judge Sam A. Crow on 12/19/2016. Mailed to pro se party Tyrone Murphy, Jr. by regular mail. (ht)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TYRONE MURPHY, JR.,
Plaintiff,
v.

CASE NO. 16-3197-SAC-DJW

R. PEARSON, Wyandotte County
Sheriff’s Department, et al.,
Defendants.

O R D E R

Plaintiff, a prisoner in state custody, filed this action on
September 20, 2016. His claims arise from a traffic stop on April 9,
2014.
On November 16, 2016, the Court directed plaintiff to show cause
why this matter should not be dismissed as barred by the two year
limitations period for filing a claim under 42 U.S.C. § 1983 in Kansas.
Plaintiff filed a timely response (Doc. #6).
Plaintiff broadly contends that several bases exist to explain
the delay in filing, namely, that he was housed for approximately 18
months in a county jail, his subsequent transfer to the state Reception
and Diagnostics Unit (“RDU”) for approximately nine weeks, and
finally, his mental capacity.
Kansas law governing the statute of limitations, including
statutory and equitable tolling, applies to this action. Braxton v.
Zavaras, 614 F.3d 1156, 1159 (10th Cir. 2010)(citing Fratus v. Deland,
49 F.3d 673, 675 (10th Cir. 1995).

Statutory tolling
K.S.A. § 60-515(a) provides:
“[i]f any person entitled to bring an action … at the time
the cause of action accrued or at any time during the period
the statute of limitation is running, is … imprisoned for
a term less than such person’s natural life, such person
shall be entitled to bring such action within one year after
the person’s disability is removed….
Notwithstanding the foregoing provision, if a person
imprisoned for any term has access to the court for purposes
of bringing an action, such person shall not be deemed to
be under legal disability.” K.S.A. § 60-515(a).
The Court has considered the record and finds no basis for
statutory tolling. Plaintiff does not allege that he could not pursue
a lawsuit while held in the county jail; rather, he claims he lacked
“adequate knowledge or resources to aid him in filing his claim.” (Doc.
#6, p. 1). He does not provide a detailed explanation, nor does he
suggest that he made any effort to pursue a claim concerning the
traffic stop.
Likewise, plaintiff points to a subsequent, nine-week period
during which he was assigned to the RDU, but again, he makes no specific
allegations of fact concerning his ability to file a lawsuit and does
not suggest that he made any effort to do so.
Equitable tolling
Equitable tolling under Kansas law is limited, and plaintiff must
establish that “some ‘extraordinary circumstance stood in [the] way
and prevented timely filing.’” McClain v. Roberts, 304 P.3d 364, 2013
WL 3970215, *3 (Kan.App. Aug. 2, 2013)(quoting McQuiggin v. Perkins,
133 S.Ct. 1924, 1931 (2013)).
While plaintiff alleges that his mental capacity impaired his
ability to file a lawsuit, he does not present any specific facts
concerning his mental state which might arguably create a material

question concerning his ability to timely pursue legal remedies. See
Martin v. Naik, 228 P.3d. 1092, 1097-1100 (Kan.App. 2010)(“In the case
of an incapacitated person … [K.S.A. 60-515] applies only to a person
who is incapacitated at the time the cause of action accrues or who
later becomes incapacitated while the statute of limitations is
running.”) Plaintiff’s vague allegations concerning his mental
condition are insufficient to suggest that any extraordinary
circumstances exist to excuse his failure to timely file this action.
For these reasons, the Court concludes plaintiff is not entitled
to either statutory or equitable tolling in this matter and will
dismiss this action as barred by the two-year limitation period.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
due to plaintiff’s failure to timely commence this action.
IT IS SO ORDERED.
DATED:

This 19th day of December, 2016, at Topeka, Kansas.

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