Windham v. St. Louis County Circuit Court et al

Filing 10

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's complaint is subject to DISMISSAL because it is barred by the statute of limitations. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. #4] is DENIED AS MOOT. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge E. Richard Webber on September 29, 2017. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JERMAINE L. WINDHAM,
Plaintiff,
v.
ST. LOUIS COUNTY CIRCUIT COURT,
et al.,
Defendants.

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No. 4:17-CV-1381 ERW

MEMORANDUM AND ORDER
Before the Court is plaintiff’s response to the Court’s Order to Show Cause why this
matter should not be dismissed as barred by the five-year statute of limitations. The Court has
reviewed the response and finds that the matter is subject to dismissal pursuant to 28 U.S.C. §
1915(e)(2)(B).1
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief, a complaint must plead more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
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“Although the statute of limitations is an affirmative defense, a district court may properly
dismiss an in forma pauperis complaint under 28 U.S.C. § 1915[e] when it is apparent the statute
of limitations has run.” Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992).

alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief is a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
Discussion
In 2005, plaintiff was arrested and charged with assault. On September 26, 2005, he pled
guilty to one count of second-degree assault. Missouri v. Windham, No. 2105R-03544-01 (St.
Louis County). Plaintiff says the police who arrested him and the prosecutor who tried him
violated his rights.
In the Memorandum and Order issued on August 22, 2017, the Court noted that
plaintiff’s claims against defendants appeared to be barred by the five-year statute of limitations
applied to 42 U.S.C. § 1983 claims brought in the State of Missouri. See Sulik v. Taney County,
Mo., 393 F.3d 765, 766-67 (8th Cir. 2005); Mo. Rev. Stat. § 516.120(4). Plaintiff was asked to
show cause why his case should not be dismissed as a result of the statute of limitations.
In his response brief, plaintiff asserts that there were “inconsistencies in the police report
and victim statements, as well as a lack of probable cause for a felony charge” against him. He
also claims that defendants were known for employing “well known, aggressive tactics” against
arrestees. Plaintiff additionally alleges that he believes there were forged signatures on several
state court documents, which he claims violated his due process rights. Plaintiff has attached
purported evidence of his allegations to his response brief. He last asserts that the charges
against him have caused numerous financial hardships.

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Unfortunately, plaintiff’s “arguments” in his response brief go to the substance of his
allegations against defendants rather than to arguments against application of the statute of
limitations in this action. No good cause being shown against the application of the statute of
limitations in this matter, the Court finds that plaintiff’s action against defendants expired
sometime in 2010. As a result, this action must be dismissed, pursuant to 28 U.S.C. §
1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s complaint is subject to DISMISSAL
because it is barred by the statute of limitations. See 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel [Doc.
#4] is DENIED AS MOOT.
A separate Order of Dismissal shall accompany this Memorandum and Order.
So Ordered this 29th day of September, 2017.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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