Banks et al v. Carroll et al

Filing 8

///ORDER granting 6 Motion to Dismiss. So Ordered by Judge Paul J. Barbadoro.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Keelin Banks, et al.
Case No. 15-cv-07-PB
Opinion No. 2015 DNH 183

v.
Shaun Carroll, Jr., et al.

O R D E R
Keelin and Daniel Banks filed their complaint in this case
on January 8, 2015.

Plaintiffs assert state and federal

constitutional claims against the Sunapee School District and
two school officials that are based on conduct that allegedly
occurred during the 2008-09 school year.

All of the claims

arise from defendants’ efforts to have Keelin Banks suspended
from school.
Defendants argue in a motion to dismiss that plaintiffs’
claims are barred by the applicable three-year statute of
limitations.

See generally, King v. Town of Hanover, 139 N.H.

752, 754 (1995); Gorelik v. Costin, 605 F.3d 118, 121-22 (1st
Cir. 2010).

Plaintiffs do not question defendants’ contention

that their claims are subject to a three-year statute of
limitations.

Nevertheless, they argue that the claims are

timely because they did not accrue until January 9, 2012, when

plaintiffs completed their effort to administratively challenge
Keelin’s suspension.
I am unpersuaded by plaintiffs’ argument.

Constitutional

claims ordinarily are not subject to an administrative
exhaustion requirement.

Patsy v. Bd. of Regents of State of

Fla., 457 U.S. 496, 516 (1982).

Accordingly, a statute of

limitations is not tolled merely because the plaintiff is also
pursuing an administrative remedy.

Smith v. McClammy, 740 F.2d

925, 927 (11th Cir. 1984); Gudzelak v. Jurdan, 495 Fed. Appx.
217, 219 (3d Cir. 2012).
It is clear from a fair reading of the complaint that
plaintiffs were well aware of their potential claims for more
than six years before they filed their complaint.

There is no

reason why the applicable statute of limitations should be
tolled.

Accordingly, I agree with the defendants that

plaintiffs’ claims must be dismissed.
Defendants’ motion to dismiss (Doc. No. 6) is granted.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
September 22, 2015
cc:

Keelin Banks, pro se
Daniel Banks, pro se
Robert Joseph Dietel, Esq.
Charles P. Bauer, Esq.

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