Lowe (ID 61931) v. Ash et al

Filing 25

MEMORANDUM AND ORDER granting 20 Motion to Dismiss. Signed by Chief District Judge Julie A Robinson on 11/17/2017. Mailed to pro se party VINCENT LOWE by regular mail (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
VINCENT LOWE,
Plaintiff,
v.

Case No. 16-3233-JAR-JPO

DONALD ASH, ET AL.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff is a prisoner at the Norton Correctional Facility in Norton, Kansas. He brings
this action under 42 U.S.C. § 1983, alleging excessive force by Defendants when he was
removed from his jail cell at the Wyandotte County Detention Center on October 25, 2014.
Before the Court is Defendants’ Motion to Dismiss (Doc. 20). Plaintiff has not responded to the
motion, nor to an Order to Show Cause why the motion should not be granted for failure to
respond (Doc. 24). The motion can therefore be granted for failure to file a response. The
motion can also be granted on the merits, as described more fully below.
Plaintiff failed to file a response to the motion to dismiss and the time to do so has
expired.1 Under D. Kan. Rule 7.4,
Absent a showing of excusable neglect, a party or attorney who
fails to file a responsive brief or memorandum within the time
specified in D. Kan. Rule 6.1(d) waives the right to later file such
brief or memorandum. If a responsive brief or memorandum is not
filed within the Rule 6.1(d) time requirements, the court will
consider and decide the motion as an uncontested motion.
Ordinarily, the court will grant the motion without further notice.
A pro se litigant is not excused from complying with the rules of the court, and is subject to the
1

See D. Kan. R. 6.1(d)(2) (requiring a response to a dispositive motion to be filed within twenty-one days).

consequences of noncompliance.2 As a result of Plaintiff’s failure to respond, the Court may
grant Defendants’ motion to dismiss as uncontested.
The Court also finds that the Complaint must be dismissed on the merits, because the
claims are time-barred. The statute of limitations for claims brought under 42 U.S.C. § 1983 is
governed by the personal injury statutes for the state in which the federal district court sits.3
While state law provides the statute of limitations period, federal law determines the date on
which the claim accrues and the statute begins to run.4 State law also determines any tolling of
the limitations period, although federal law may allow for additional tolling in rare
circumstances.5 A claim brought under § 1983 is characterized as a personal injury tort for
statute of limitations purposes.6 In Kansas, the statute of limitations for personal injury actions is
two years.7 Therefore, to be timely, his claim must have accrued within the two years prior to
the date he filed his Complaint on November 17, 2016.
“A civil rights action accrues when the plaintiff knows or has reason to know of the
injury which is the basis of the action.”8 It is not necessary that the plaintiff know of all the
evidence that he ultimately relies on for the statute of limitations to accrue.9 Assuming as true
the facts alleged in the Complaint, Plaintiff’s claim accrued when the excessive force incident

2

Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994) (insisting that pro se litigants follow procedural rules and citing various cases dismissing pro se
cases for failure to comply with the rules)).
3

Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008) (citing Wilson v. Garcia, 471 U.S. 251
(1985)); Graham v. Taylor, 640 F. App’x 766, 769 (10th Cir. 2016).
4

Mondragon, 519 F.3d at 1078 (citing Wallace v. Kato, 549 U.S. 384 (2007)); Graham, 640 F. App’x

5

Mondragon, 519 F.3d at 1078 (citation omitted).

6

Wallace, 549 U.S. at 387; Garcia v. Wilson, 731 F.2d 640, 651 (10th Cir. 1984).

7

K.S.A. § 60-513(a)(4).

8

Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005).

9

Id.

at769.

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occurred on October 25, 2014, more than two years before he filed his Complaint. Therefore, his
civil rights claims are barred by the statute of limitations.
The Court further dismisses Defendants Sheriff Donald Ash and Lieutenant Brian Tucker
for failure to state a plausible claim of supervisory liability under § 1983. To be liable under
§ 1983 under a supervisory liability theory, Plaintiff must demonstrate: “(1) the defendant
promulgated, created, implemented or possessed personal responsibility for the continued
operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with
the state of mind required to establish the alleged constitutional violation.”10 Plaintiff has not
alleged facts sufficient to meet these elements. Thus, he has failed to state a claim as to
Defendants Ash and Tucker.
IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion to
Dismiss (Doc. 20) is granted.
IT IS SO ORDERED.
Dated: November 17, 2017
s/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

10

Wilson v. Montano, 715 F.3d 847, 856 (10th Cir. 2013) (quoting Dodds v. Richardson, 614 F.3d 1185,
1199 (10th Cir. 2010)).

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