Taylor v. Bullock et al

Filing 4

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff Herman Taylor. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because it is legally frivolous and fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B). A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Stephen N. Limbaugh, Jr on 7/30/12. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
HERMAN TAYLOR,
Plaintiff,
v.
JARRETT BULLOCK, et al.,
Defendants.

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No. 1:12-CV-105-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the application of Herman Taylor for leave
to commence this action without prepayment of the filing fee pursuant to 28 U.S.C.
§ 1915.

Upon consideration of the financial information provided with the

application, the Court finds that plaintiff is financially unable to pay any portion of
the filing fee. As a result, plaintiff will be granted leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed
in forma pauperis at any time if the action is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief against a defendant who
is immune from such relief. An action is frivolous if “it lacks an arguable basis in
either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails

to state a claim upon which relief can be granted if it does not plead “enough facts to
state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007).
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the
complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). The Court must also weigh all factual allegations in favor of the plaintiff,
unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32
(1992).
The Complaint
Plaintiff seeks monetary relief in this 42 U.S.C. § 1983 action against
defendants Jarrett Bullock (police deputy), Derek Lawrence (police officer), City of
Clarkson, Missouri, Clarkson Police Department, and Dunklin County Sheriff’s
Department. Plaintiff alleges that on or about June 10, 2006, defendant Bullock
assaulted him for no reason, resulting in plaintiff’s serious physical and emotional
injuries. In addition, plaintiff asserts a pendent state-law tort claim.
To determine the applicable limitations period for § 1983 claims, federal courts
borrow state statutes of limitations for general personal injury claims. Owens v.
Okure, 488 U.S. 235, 249-50 (1989); Wilson v. Garcia, 471 U.S. 261, 276 (1985).
In Missouri, the applicable limitations period for general personal injury claims is
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five years. Mo. Rev. Stat. § 516.120(4) (2000). Plaintiff’s claims allegedly took
place in June 2006, and thus, the instant action is untimely, as the complaint was not
filed until June 21, 2012. See Lohman v. Kempker, 34 Fed. Appx. 514, 2002 WL
992330 (8th Cir. 2002) (applying Missouri five-year statute of limitations to a cause
of action under § 1983).
Because plaintiff's federal claims will be dismissed, all remaining pendent state
claims will be dismissed, as well. See 28 U.S.C. § 1367(c)(3); United Mine Workers
v. Gibbs, 383 U.S. 715, 726 (1966) (if federal claims are dismissed before trial,
remaining state claims should also be dismissed); Hassett v. Lemay Bank & Trust
Co.,851 F.2d 1127, 1130 (8th Cir. 1988) (where federal claims have been dismissed,
district courts may decline jurisdiction over pendent state claims as a "matter of
discretion").
For these reasons, the complaint shall be dismissed without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint, because it is legally frivolous and fails to state
a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B).
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A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 30th day of July, 2012.

UNITED STATES DISTRICT JUDGE

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