Avalos v. United States of America et al

Filing 19

ORDER ENTERED: Plaintiff's motion to reconsider 18 is denied. Signed by U.S. District Senior Judge Sam A. Crow on 01/26/18. Mailed to pro se party Filiberto Avalos by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

FILIBERTO AVALOS,
Plaintiff,
vs.

Case No. 16-3224-SAC

UNKNOWN EMPLOYEES OF U.S.
BORDER PATROL,
Defendants.

O R D E R
This case is before the court upon plaintiff’s motion (Doc.
No. 18) for reconsideration of the court’s order (Doc. No. 14)
dismissing plaintiff’s action.

The court dismissed plaintiff’s

action on the grounds that it appeared untimely upon the face of
the complaint and materials filed by plaintiff.

As the court

stated in a previous order (Doc. No. 17) denying what the court
treated as a motion to alter or amend, FED.R.CIV.P. 59(e) gives
the court the discretion to reconsider a final decision if the
moving party can establish:

(1) an intervening change in the

controlling law; (2) the availability of new evidence that could
not have been obtained previously through the exercise of due
diligence; or (3) the need to correct clear error or prevent
manifest

injustice.

Servants

1005, 1012 (10th Cir. 2000).

of

Paraclete

v.

Does,

204

F.3d

Plaintiff’s cause of action stems from events in 2002 when
plaintiff

was

16

years

illegally

arrested

California

and

old.

and

later

Plaintiff

detained

released

in

as

alleges

that

an

Mexico.

During

was

alien

illegal

he

in

this

plaintiff was “raped, robbed, beat and left for dead.”
13, p. 2.

time

Doc. No.

But, he was able to return to California in a few

weeks and graduated from high school there in 2004.
Plaintiff filed this case in November 2016.
Bivens

action.

So,

the

limitations

provisions of California apply.
order

dismissing

this

case,

period

This is a
and

tolling

As the court explained in the
under

these

rules

plaintiff’s

complaint is untimely on its face.
Plaintiff’s

motion

to

reconsider

plaintiff has made previously.

reiterates

points

Plaintiff notes that he was a

juvenile at the time of the events in 2002 and that those events
left him in shock.

The court considered those points in the

order dismissing this case.
in 2004.

Plaintiff was no longer a juvenile

So, the statute of limitations period was exhausted by

the time plaintiff filed this case because, for the reasons
explained

in

the

dismissal

order,

plaintiff’s

allegation

of

“shock” does not provide a plausible grounds to toll the running
of the limitations period.
Plaintiff cites several cases in his motion to reconsider.
But, these cases are not persuasive.

In Marrero-Gutierrez v.

Molina,

491

F.3d

1

(1st

Cir.

2007),

the

court

held

in

an

employment discrimination case that the limitations period began
at the time of the adverse action, not the time that a plaintiff
learned

of

action.

the

alleged

illegal

motivation

for

the

adverse

In Brown v. Ga. Bd. of Pardons and Paroles, 335 F.3d

1259, 1261 (11th Cir. 2003), the court held that the limitations
period for the plaintiff’s action began to run from the date the
facts which would support a cause of action were or should have
been apparent.

The court found that the limitations period

began to run in 1995 for the plaintiff in Brown and that his
action was untimely filed.

Marrero-Gutierrez and Brown do not

provide good grounds for modifying the court’s holding in this
case.
In Fratus v. DeLand, 49 F.3d 673 (10th Cir. 1995), the Tenth
Circuit reversed a dismissal on the grounds that the district
court

improperly

plaintiff’s

determined

mental

a

incompetency

factual
and

issue

whether

it

as

to

the

tolled

the

limitations period, when the district court was evaluating the
case under 28 U.S.C. § 1915(d).

The record in Fratus contained

allegations that the plaintiff had been institutionalized for
psychological

treatment

reports

would

that

and

that

establish

there

his

were

mental

numerous

medical

incompetency.

In

Neiberger v. Hawkins, 208 F.R.D. 301 (D.Colo. 2002), the court,
applying

Colorado

law,

held

that

an

insanity

determination

tolled the running of the statute of limitations.

Unlike the

plaintiff in Fratus, Mr. Avalos has not alleged facts plausibly
supporting

grounds

to

toll

the

statute

of

limitations.

As

explained in the court’s dismissal order, alleging “shock” is
insufficient.

Unlike the plaintiff in Neiberger, plaintiff does

not allege that he has been determined to be insane.
In Papa v. United States, 281 F.3d 1004 (9th Cir. 2002), the
court held that the limitations period upon a Bivens claim was
tolled

as

to

some

plaintiffs

who

were

minors

and

that

the

tolling did not end when an administrative claim was filed on
their behalf.

Mr. Avalos reached the age of majority in 2004.

The tolling of the limitations period ended then and the period
was exhausted before he filed this case.
Plaintiff also makes reference to “the new Boy Scout case.”
Perhaps he means Doe v. Boy Scouts of America Corp., 147 A.3d
104 (Conn. 2016).

The Doe case, however, does not involve a

Bivens claim and does not apply the statute of limitations and
tolling provisions of California.

So, it is distinguishable.

Finally, plaintiff mentions a heavily publicized criminal case
involving sexual abuse.
provide

good

precedent

A criminal case, however, does not
for

the

analysis

of

a

statute

of

limitations issue in a civil case, like the one filed here by
plaintiff.

For

the

above-stated

reasons,

the

court

shall

deny

plaintiff’s motion to reconsider.
IT IS SO ORDERED.
Dated this 26th day of January, 2018, at Topeka, Kansas.

s/Sam A. Crow__________________________
Sam A. Crow, U.S. District Senior Judge