Milliman v. Howell County, MO et al
ORDER granting 24 Motion to Dismiss for Failure to State a Claim as to defendant Turner. Signed on 9/9/2021 by District Judge M. Douglas Harpool. (Maerz, Mary)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
LANCE GERALD MILLIMAN,
HOWELL COUNTY, MISSOURI, et al.,
Case No. 6:21-CV-03119-MDH
Before the Court is Defendant Bethany Turner’s Motion to Dismiss. (Doc. 24). Turner
moves the Court to dismiss her as a party to the above-captioned case. For the reasons set forth
herein, the Motion is GRANTED.
Pursuant to U.S.C. § 1983, Plaintiff Milliman has sued, Defendant Turner, a Missouri State
Public Defender. The other Defendants are Howell County, Judge David Ray, Howell County
Prosecuting Attorney Mr. Michael Hutchings, and Missouri State Highway Patrol Officer Scott
Nelson for various constitutional violations stemming from incidents relating to a traffic stop and
subsequent arrest of Plaintiff that occurred in 2011. Plaintiff alleges that Turner violated his Sixth
Amendment Rights by declining to represent him since he did not meet the financial exigency
requirements to qualify for the services of the Public Defender’s Office.
Fed. R. Civ. P. 12(b)(6) permits a party to move for dismissal of a cause of action that
“fail[s] to state a claim upon which relief may be granted.” The notice pleading standards contained
in Rule 8(a)(2) require only “a short and plain statement showing that the pleader is entitled to
Case 6:21-cv-03119-MDH Document 35 Filed 09/09/21 Page 1 of 3
relief.” However, the “complaint must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (internal
quotations and citation omitted). This requirement of facial plausibility means that the factual
content of the Complaint’s allegations must “allow the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Cole v. Homier Distrib. Co., 599 F.3d 856,
861 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 677).
First, Plaintiff’s claims against Turner are barred by the applicable statutes of limitations.
“Section 1983 provides a federal cause of action, but in several respects relevant here federal law
looks to the law of the State in which the cause of action arose. This is so for the length of the
statute of limitations: It is that which the State provides for personal-injury torts.” Wallace v. Kato,
549 U.S. 384, 387, 127 S. Ct. 1091, 1093, 166 L. Ed. 2d 973 (2007). Plaintiff’s claims are barred
by the five year personal injury statute of limitation of Mo. Rev. Stat. 516.120. Sulik v. Taney
County, Mo., 393 F.3d 765, 766-67 (8th Cir. 2005) (applying the five year statute of limitations of
Mo. Rev. Stat. 516.120(4) to prisoner’s 1983 claims). See also Wilson v. Garcia, 471 U.S. 261,
276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (§ 1983 actions should be characterized as personal
injury claims for purpose of applying appropriate state statute of limitations); Farmer v. Cook, 782
F.2d 780, 780 (8th Cir.1986) (§ 1983 claims brought in Missouri were subject to 5–year statute of
limitations). Plaintiff filed his Complaint against Defendants, including Turner, on May 11, 2021.
The alleged injury, however, occurred sometime in 2011, approximately ten years before
Plaintiff’s Complaint. (See Compl. ¶ 9). Therefore, Plaintiff’s claims against Turner are barred by
the statute of limitations his claims against Turner are dismissed.
Case 6:21-cv-03119-MDH Document 35 Filed 09/09/21 Page 2 of 3
For the reasons set forth herein, Defendant Turner’s Motion to Dismiss (Doc. 24) is
GRANTED. Defendant Turner is dismissed as a party in this case.
IT IS SO ORDERED.
Dated: September 9, 2021
/s/ Douglas Harpool______
United States District Judge
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