Douglas v. City of Wellston et al
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant Weavers motion to dismiss is GRANTED only with respect to her Count IV, assault and battery claim. Signed by District Judge Rodney W. Sippel on 11/13/17. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CITY OF WELLSTON, et al.,
Case No. 4:16 CV 1681 RWS
MEMORANDUM & ORDER
Defendant Michael Weaver moves to dismiss plaintiff’s claim of assault and
battery against him for failure to state a claim upon which relief can be granted.
Weaver argues that the applicable statute of limitations for this claim is two years.
Plaintiff Stephanie Douglas filed this complaint more than three years after her
alleged injury occurred. Douglas argues that courts characterize Section 1983
claims as personal injury claims when determining the applicable statute of
limitations. Because Count IV of Douglas’s complaint is a state law assault and
battery claim, I will grant Defendant Weaver’s motion to dismiss only with respect
to Count IV.
STANDARD OF REVIEW
In ruling on a motion to dismiss, I must accept as true all factual allegations
in the complaint and view them in the light most favorable to the plaintiff. Hager
v. Ark. Dept. of Health, 735 F.3d 1009, 1013 (8th Cir. 2013). The federal rules
require only a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). An affirmative defense may be asserted
to prove that the pleader is not entitled to relief, if that defense is “apparent on the
face of the complaint.” Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978, 983
(8th Cir. 2008). A statute limitations defense may be waived if the defendant does
not assert it in his answer. See, e.g., Myers v. John Deere Ltd., 683 F.2d 270, 273
(8th Cir.1982). However, “when it appears from the face of the complaint itself
that the limitation period has run, a limitations defense may properly be asserted
through a 12(b)(6) motion to dismiss.” Varner v. Peterson Farms, 371 F.3d 1011,
1016 (8th Cir. 2004).
In her petition, Douglas has alleged four counts against Weaver and one
count against the City of Wellston. Of the four counts against Weaver, three are
based on constitutional violations actionable pursuant to Section 1983. The fourth
count is an assault and battery claim that cites no constitutional protection or
connection to Section 1983. Douglas correctly argues that “courts characterize
Section 1983 claims as ‘personal injury’ claims for the purpose of applying the
appropriate statute of limitations.” [ECF Doc. No. 56, p. 5] (citing Sulik v. Taney
Cnty., Mo., 393 F.3d 765, 767 (8th Cir. 2005); Wilson v. Garcia, 471 U.S. 261,
276 (1985)). However, Count IV is not a Section 1983 claim, but rather a state law
assault and battery claim. As a result, the two-year Missouri statute of limitations
for assault and battery applies. Mo. Rev. Stat. § 516.140. Douglas alleges that
Weaver committed assault and battery against her on April 5, 2013. She filed this
complaint more than three years later on October 28, 2016. The statute of
limitations had run for her assault and battery claim before Douglas filed this
IT IS HEREBY ORDERED that Defendant Weaver’s motion to dismiss is
GRANTED only with respect to her Count IV, assault and battery claim.
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 13th Day of November, 2017.
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