Eden v. Webb et al

Filing 9

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until December 20, 2021, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint should not be dismissed. Plaintiff's Motion to Appoint Counsel (ECF No. #5 ), Motion for Order Compelling Discovery (ECF No. #6 ), and Motion for Notification of Legal Hold of Electronically Stored Information (ECF No. #7 ) are denied without prejudice. Signed by Senior U.S. District Judge Sam A. Crow on 11/18/21. Mailed to pro se party Charles David Eden by regular mail. (smnd)

Case 5:21-cv-03266-SAC Document 9 Filed 11/18/21 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHARLES DAVID EDEN,
Plaintiff,
v.

CASE NO. 21-3266-SAC

AARON WEBB, et al.,
Defendants.
MEMORANDUM AND ORDER
TO SHOW CAUSE
Plaintiff Charles David Eden is hereby required to show good cause, in writing, to the
Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed
due to the deficiencies in Plaintiff’s Complaint that are discussed herein.
1. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff is a
prisoner at the Saline County Jail in Salina, Kansas. The Court granted Plaintiff leave to proceed
in forma pauperis.
The Complaint is based on an incident that occurred on November 29, 2017. Plaintiff
alleges three police officers for the cities of Bel Aire and Kechi, Kansas used excessive force when
arresting him in violation of his rights under the Fourth, Eighth, and Fourteenth Amendments.
Plaintiff names as defendants Officer Aaron Webb, Officer Joseph Trumbell, and Officer
Aaron Crouse. Plaintiff seeks $300,000 in compensatory damages.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a).

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The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are
legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that
seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)–
(2).
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48
(1988)(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court
liberally construes a pro se complaint and applies “less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts
all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th
Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise
a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 558 (2007).
A pro se litigant’s “conclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual
allegations must be enough to raise a right to relief above the speculative level” and “to state a
claim to relief that is plausible on its face.” Id. at 555, 570.
The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court, a
complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did

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it; how the defendant’s action harmed [the plaintiff]; and, what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007). The court “will not supply additional factual allegations to round out a plaintiff’s
complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d
1170, 1173-74 (10th Cir. 1997) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and
Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted); see also Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the
complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at
1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the
line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in
a complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to
plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).
III. DISCUSSION
1. Statute of Limitations
Plaintiff alleges that the arrest forming the basis of his Complaint occurred on November
29, 2017. The Complaint is subject to dismissal because it is untimely. The statute of limitations
for § 1983 claims “is drawn from the personal-injury statute of the state in which the federal district
court sits.” Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). The Court therefore

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applies Kansas's two-year statute of limitations for personal injury actions. See Kan. Stat. Ann. §
60–513(a)(4); Brown v. Unified School Dist. 501, Topeka Public Schools, 465 F.3d 1184, 1188
(10th Cir. 2006) (citations omitted).
While state law governs the length of the limitations period and tolling issues, “the accrual
date of a § 1983 cause of action is a question of federal law.” Wallace v. Kato, 549 U.S. 384, 388
(2007). Under federal law, the claim accrues “when the plaintiff has a complete and present cause
of action.” Id. at 388 (internal quotation marks and citation omitted). In other words, a § 1983
claim accrues “when the plaintiff knows or has reason to know of the injury which is the basis of
his action.” Kripp v. Luton, 466 F.3d 1171, 1175 (10th Cir. 2006) (internal quotation marks
omitted).
It plainly appears from the face of the Complaint that it is subject to dismissal as barred by
the applicable two-year statute of limitations. Plaintiff filed his Complaint on November 15, 2021.
Plaintiff’s claim accrued when he was arrested in November, 2017, almost four years prior to the
filing date of this Complaint. Consequently, unless tolling applies, Plaintiff’s claim is untimely.
In certain limited circumstances, the statute of limitations may be subject to tolling.
Because the Court applies the Kansas statute of limitations in § 1983 cases, it also looks to Kansas
law for questions of tolling. Fratus v. Deland, 49 F.3d 673, 675 (10th Cir. 1995). The plaintiff has
the burden of establishing a factual basis for tolling the limitations period. Aldrich v. McCulloch
Props., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir. 1980); Slayden v. Sixta, 825 P.2d 119, 122 (Kan.
1992).
Generally, a Kansas court cannot extend the limitation period except as provided by statute.
McClain v. Roberts, 304 P.3d 364 (Table), 2013 WL 3970215, *3 (Kan. App. Aug. 2, 2013), citing
Underhill v. Thompson, 158 P.3d 987, 995 (Kan. App. 2007). Kansas law provides that a prisoner

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is presumed to be a person under a legal disability so that the limitation period would be tolled
until the disability is removed (here, when the person is released), at which point the action must
be brought within one year. K.S.A. 60–515(a). However, the statute further provides that “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). Therefore, to be
entitled to tolling under K.S.A. 60-515(a), a prisoner must have been denied access to the courts
such that he could not file within the limitation period, something that Mr. Eden has not claimed.
McClain, 2013 WL 3970215 at *3, citing see Bulmer v. Bowling, 4 P.3d 637, 639 (Kan. App.
2000); Parker v. Bruce, 109 F. App’x 317, 319 (10th Cir. 2004) (unpublished opinion).
Plaintiff alleges that he suffered memory loss as a result of the incident and did not learn
of Defendants’ actions until he viewed body camera footage that was provided to Plaintiff during
discovery in a criminal case. (ECF No. 2, at 2). He asserts his “discovery” of the claim occurred
on December 30, 2019. (ECF No. 5, at 4). If Plaintiff’s memory loss qualified as a legal disability
making K.S.A. 60–515(a) applicable, he would have had one year from December 30, 2019 to file
this action. See Watson v. Board of Com’rs of Saline County, 214 F. App’x 864, 865 (10th Cir.
2007) (approving application of tolling provision of K.S.A. 60-515(a) where prisoner claimed
memory loss and mental illness delayed his discovery of claim until he received medical reports
and other documents in the course of pursuing a separate legal claim). Because Plaintiff’s
disability was apparently relieved when he received the body camera footage in November or
December of 2019, he had until November or December of 2020 to commence this action under
K.S.A. 60-515. However, he did not file his Complaint until November 15, 2021.
Kansas also recognizes the doctrine of equitable tolling but seems to apply it only where
defendants did “something that amounted to an ‘affirmative inducement to plaintiff to delay

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bringing the action.’” Friends University v. W.R. Grace & Co., 608 P.2d 936, 941 (Kan. 1980)
(quoting Rex v. Warner, 332 P.2d 572 (Kan. 1958)). The record fails to support a claim that
Defendant affirmatively induced Plaintiff into delaying his filing of this suit.
In addition, at least one Kansas appellate court has applied the equitable tolling standard
for habeas cases in the context of a § 1983 action. See McClain, 2013 WL 3970215 at *3. That
standard provides for equitable tolling where a litigant has been pursuing his rights diligently and
some extraordinary circumstance prevented timely filing. McQuiggin v. Perkins, 569 U.S. 383,
391 (2013) (quoting Holland v. Florida, 560 U.S. 631 (2010)). Even if Plaintiff’s asserted memory
loss were an extraordinary circumstance, he falls short on the diligence requirement in that it has
been almost two years since he “discovered” his claim.
A district court may dismiss a complaint filed by an indigent plaintiff if it is patently clear
from the allegations as tendered that the action is barred by the statute of limitations. Fogle, 435
F.3d at 1258. Because Plaintiff did not file his claim within the two-year limitation period and
because Plaintiff does not establish a factual basis for tolling the limitation period, Plaintiff’s
Complaint is subject to dismissal as barred by the statute of limitations.
IV. Response Required
For the reasons stated herein, Plaintiff’s Complaint is subject to dismissal in its entirety.
Plaintiff is therefore required to show good cause why his Complaint should not be dismissed.
Plaintiff is warned that his failure to file a timely response may result in the Complaint being
dismissed without further notice.

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V. Motions
Plaintiff has also filed a motion to appoint counsel (ECF No. 5), a motion for order
compelling discovery (ECF No. 6), and a motion for notification of legal hold of electronically
stored information (ECF No. 7).
Plaintiff’s motions are denied at this time.

There is no constitutional right to the

appointment of counsel in a civil case. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989);
Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995). The decision whether to appoint counsel in
a civil matter lies within the discretion of the district court. Williams v. Meese, 926 F.2d 994, 996
(10th Cir. 1991). “The burden is on the applicant to convince the court that there is sufficient merit
to his claim to warrant the appointment of counsel.” Steffey v. Orman, 461 F.3d 1218, 1223 (10th
Cir. 2006), quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). It is
not enough “that having counsel appointed would have assisted [the prisoner] in presenting his
strongest possible case, [as] the same could be said in any case.” Steffey, 461 F.3d at 1223, quoting
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). In deciding whether to appoint counsel,
the district court should consider “the merits of the prisoner’s claims, the nature and complexity
of the factual and legal issues, and the prisoner’s ability to investigate the facts and present his
claims.” Rucks, 57 F.3d at 979; Hill, 393 F.3d at 1115.
Considering these factors, the Court concludes that it is not clear at this point that Plaintiff
has asserted a colorable claim. The Court has not yet made the determination of whether or not
Plaintiff’s claim survives the initial screening required by 28 U.S.C. § 1915. Therefore, the Court
denies Plaintiff’s motion for appointment of counsel at this time. However, this denial is made
without prejudice. If it becomes apparent that appointed counsel is necessary as this case further
progresses, Plaintiff may renew his motion.

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For the same reason, the Court denies without prejudice Plaintiff’s motion for order
compelling discovery and motion for notification of legal hold of electronically stored information.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
December 20, 2021, in which to show good cause, in writing, to the Honorable Sam A. Crow,
United States District Judge, why Plaintiff’s Complaint should not be dismissed for the reasons
stated herein.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel (ECF No. 5),
Motion for Order Compelling Discovery (ECF No. 6), and Motion for Notification of Legal Hold
of Electronically Stored Information (ECF No. 7) are denied without prejudice.
IT IS SO ORDERED.
Dated November 18, 2021, in Topeka, Kansas.

s/_Sam A. Crow_____
SAM A. CROW
SENIOR U. S. DISTRICT JUDGE

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