Phillips v. Wood

Filing 16

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Appoint Counsel and Affidavit in Support [ECF No. 14 ] is DENIED. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complaint fails to state a claim upon which relief can be granted. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge E. Richard Webber on September 24, 2013. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CLINT PHILLIPS, III,
Plaintiff,
vs.
UNKNOWN WOOD,
Defendant.

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Case No. 4:13CV00973 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff Clint Phillips, III’s (“Plaintiff”) “Motion
to Appoint Counsel and Affidavit in Support” [ECF No. 14].
When Plaintiff filed his Complaint against Defendant Unknown Wood, a law
enforcement officer with the St. Louis County Police Department (“Police Department”), on May
20, 2013, Plaintiff also filed motions to proceed in forma pauperis (“IFP”) and to appoint counsel
[ECF Nos. 3, 4]. On June 4, 2013, the Court granted Plaintiff’s motion to proceed IFP, but
denied the motion to appoint counsel, with leave to refile at a later date [ECF No. 5]. At that
time, the Court also determined that Plaintiff’s allegations brought pursuant to 42 U.S.C. § 1983
of false arrest, false imprisonment and illegal search and seizure survived review under 28 U.S.C.
§ 1915.
Plaintiff’s Complaint states that he is suing Defendant Unknown Wood “in his individual
capacity for violations committed in his ministerial capacity.” [ECF No. 1 at 4]. Plaintiff alleges
that Defendant Unknown Wood arrested him without a warrant, for a misdemeanor that was not
committed in the officer’s presence. Generally, fictitious parties, such as John Does, may not be
named as defendants in a civil action. Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985).

However, an action may proceed against a party whose name is unknown, if the complaint makes
sufficiently specific allegations to allow the party’s identity to be ascertained following
reasonable discovery. Id. Consequently, the Court ordered the Clerk of Court to issue process
on Defendant Unknown Wood [ECF No. 5].
In the interim, summons issued as to Defendant Unknown Wood, Badge #314, but was
returned unexecuted on June 11, 2013, with the remark that the St. Louis County Personnel
Department stated no officer with the badge number given by Plaintiff and last name of Wood
was currently employed by the St. Louis County Police Department (“Police Department”) [ECF
No. 7]. The Clerk of Court wrote to Plaintiff to request service information for Defendant
Unknown Wood on June 13 [ECF No. 8]. On June 14, Plaintiff filed an unsigned
“Memorandum for Clerk,” stating that Defendant Unknown Wood’s badge number was #3414,
and that he worked in the Police Department’s First Precinct [ECF No. 9].
Upon Plaintiff’s June 14 request, an alias summons issued as to Defendant Unknown
Wood on June 17, 2013 [ECF No. 10]. Thereafter, the alias summons was returned unexecuted
on June 28, 2013, with the remark that the officer was no longer employed by the Police
Department [ECF No. 12]. On July 1, 2013, the Clerk of Court again wrote to Plaintiff, to
inform Plaintiff that the U.S. Marshal Service notified the Clerk they were still unable to serve
Defendant Unknown Wood with the amended information Plaintiff provided to the Court on
June 14. Enclosing a Summons form with his letter, the Clerk told Plaintiff it was still necessary
for Plaintiff to provide the Court with the proper address or proper name for Defendant Unknown
Wood. The Clerk asked Plaintiff to complete an enclosed Summons form with updated
information and file it with the Court with a memorandum to the Clerk, requesting service [ECF
No. 13].

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On June 17, 2013, Plaintiff filed a copy of the investigative report concerning the incident
that is the subject of the Complaint’s allegations [ECF No. 11]. This document was sealed due to
the presence of personal identifying information, but this report indicates that the incident giving
rise to Plaintiff’s claims occurred on March 28, 2008.
On July 22, 2013, Plaintiff filed another unsigned “Memorandum for Clerk,” in which
Plaintiff alleges he has been trying to locate Defendant Unknown Wood, but the St. Louis
County Police Department (“Police Department”) was denying him information about the officer
because he is pro se [ECF No. 15]. Plaintiff further alleges he was told the officer still worked in
the Police Department’s First Precinct, but the Police Department claimed the officer no longer
worked for it when the U.S. Marshals attempted to serve him. Plaintiff contends the Police
Department knows Defendant Unknown Wood’s full name, address, and location, but is
obstructing justice by not cooperating with the U.S. Marshals or the Court.
The Court has reviewed the Complaint and will dismiss it pursuant to 28 U.S.C. §
1915(e)(2)(B), which requires the Court to dismiss a Complaint filed in forma pauperis where the
action is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. An action is frivolous if it
“lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 328 (1989). A
complaint fails to state a claim 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).
Plaintiff’s Complaint fails to allege when the wrongful conduct occurred; however, the
investigative report Plaintiff filed on June 17, 2013, shows that the incident occurred on March
28, 2008 [ECF No. 1, 11]. Claims brought under 42 U.S.C. § 1983 are governed by the personal
injury statute of limitations of the state where the claim arose. Bridgeman v. Neb. State

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Penitentiary, 849 F.2d 1076, 1077 (8th Cir. 1988)(per curiam). The Missouri five-year personal
injury statute of limitations, Missouri Revised Statutes § 516.120(4), applies to § 1983 actions.
See Garrett v. Clarke, 147 F.3d 745, 746 (8th Cir. 1992). Thus, the applicable statute of
limitations on Plaintiff’s § 1983 claims would have expired on March 28, 2013, prior to his filing
of this action on May 20, 2013. Plaintiff’s false arrest and false imprisonment state law claims
are also time-barred, as Missouri Revised Statutes § 516.140 requires such claims to be brought
within two years of the cause of action. See Hazlett v. City of Pine Lawn, 2013 WL 4482864 at
*3 (E.D. Mo. Aug. 19, 2013). The Court finds that Plaintiff’s Complaint fails to state a claim to
relief that is plausible on its face, because Plaintiff’s claims are barred by the applicable statutes
of limitations.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s “Motion to Appoint Counsel and Affidavit
in Support” [ECF No. 14] is DENIED.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the complaint because the complaint fails to state a claim upon which relief can be
granted.
An appropriate Order of Dismissal shall accompany this Memorandum and Order.
Dated this

24th

day of September, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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