Barron v. United States of America et al

Filing 44

ORDER by Judge Ronald A. White granting in part and denying in part motion to strike or dismiss ( 32 Motion to Strike ; 32 Motion to Dismiss) and granting motion to dismiss ( 37 Motion to Dismiss for Lack of Jurisdiction ; 37 Motion to Dismiss Case for Failure to State a Claim) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RICKY DALE BARRON,
Plaintiff,
v.
THE UNITED STATES OF
AMERICA, et al.,
Defendants.

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Case No. CIV-17-412-RAW

ORDER
Before the court are the motions of the defendants to dismiss. In case no. 15-CR-73RAW, plaintiff pled guilty to an information which charged him with (1) being a felon in
possession of firearm, in violation of 18 U.S.C. §922(g)(1); and (2) interstate transportation
of illegally-taken wildlife, in violation of 16 U.S.C. §§3372(a)(2)(A) and 3373(d)(2). After
sentencing, he filed a direct appeal. The United States Court of Appeals for the Tenth Circuit
upheld an appellate waiver within the plea agreement and dismissed the appeal. See United
States v. Barron, 677 Fed.Appx. 480 (10th Cir.2017).
Plaintiff, proceeding pro se, brings this civil action for alleged civil rights violations
in connection with his arrest regarding the criminal charges described. He bases his
complaint upon 42 U.S.C. §1983 and/or the Supreme Court decision in Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). That statute and
case are the most common bases for causes of action asserting constitutional claims against
public officials. See Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir.2013). In other words,

§1983 provides a cause of action against state officials; a Bivens action is the federal analog
to a §1983 suit and provides a “private action for damages against federal officials who
violate certain constitutional rights.” Id. A court liberally construes a pro se complaint.
Shields v. United States Postal Service, 729 Fed.Appx. 662, 663 (10th Cir.2018).
Plaintiff alleges improper conduct in the execution of the search upon his property.
He contends law enforcement conducted a “raid” on his property during which they illegally
trespassed, stole various items and personal property of plaintiff, killed plaintiff’s five pet
dogs, as well as planting evidence and “entrapping” plaintiff.1 One defendant is Eric Pratt,
employed as an Arkansas Game and Fish Commission Wildlife Officer, while the other
defendants are federal officers, the United States Forest Service and the United States of
America.
Therefore, it appears the §1983 claim is asserted against Pratt, while the Bivens claim
is asserted against the other defendants. It should be noted, however, that “a Bivens claim
can be brought only against federal officials in their individual capacities. Bivens claims
cannot be asserted directly against the United States, federal officials in their official
capacities, or federal agencies.” Smith v. United States, 561 F.3d 1090, 1099 (10th Cir.2009).
The federal defendants have moved for dismissal (among other grounds) based on
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It appears some of plaintiff’s allegations would be barred
under the “Heck doctrine,” which holds that a civil-rights claim
may be barred if its success would be inconsistent with a
criminal conviction of the plaintiff that has not been
invalidated. See Ray v. Moon, 635 Fed.Appx. 502, 504 (10th
Cir.2015)(citing Heck v. Humphrey, 512 U.S. 477 (1994)). Not all
of the allegations would appear to be barred, however. This
demarcation is not necessary to the court’s present ruling.
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statute of limitations. (#37 at 5-7). Pratt, by contrast, reserved the right to raise the defense
(#32 at 4). Because the court finds the defense dispositive, it will rule in favor of Pratt as
well and decline to address the other grounds raised by the pending motions. Plaintiff merely
alleges that the “raid” took place in 2015 (#1 at 2). The docket sheet in case no. 15-CR-73RAW indicates that plaintiff’s criminal case commenced with the filing of a complaint on
October 28, 2015. Logically, therefore, the raid took place some days before that date, as the
raid produced the evidence which was the basis for the criminal complaint. Plaintiff’s initial
appearance on the criminal charges took place on October 30, 2015. Plaintiff’s civil
complaint commencing the case at bar was filed on November 9, 2017, i.e., more than two
years after the raid.
“Under §1983 or Bivens, timeliness is determined through the state’s limitations
period for a personal injury claim. Under Oklahoma law, this period is two years.” Gilyard
v. Gibson, 612 Fed.Appx. 486, 487 (10th Cir.2015)(citations omitted). A Bivens claim
accrues, and the statute of limitations begins running, on the date that a plaintiff knows or
should know of the existence of cause of the injury that is the basis of his action. Van Tu v.
Koster, 364 F.3d 1196, 1199 (10th Cir.2004). Similarly, a §1983 claim accrues when the
plaintiff knows or has reason to know of the injury which is the basis of his action. Chrisco
v. Holubek, 711 Fed. Appx. 885, 888 (10th Cir.2017). Claims arising out of police actions
toward a criminal suspect, such as arrest, interrogation, or search and seizure, are presumed
to have accrued when the actions actually occur. Eikenberry v. Seward County, Kansas, 734
Fed.Appx. 572, 576 (10th Cir.2018). Thus, under either §1983 or Bivens, plaintiff’s claim
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accrued on the date of the raid. His civil complaint is therefore untimely.
Plaintiff seeks to avoid this conclusion by terming defendants’ conduct a continuing
violation. (#1 at 24); (#43 at 1). He contends that the acts of misconduct continued until his
sentencing date of “April 11, 2016.” (#1 at 24). (Actually, defendant’s sentencing date was
April 13, 2016.) The court disagrees with plaintiff’s contention. First, “this court has never
held that the continuing-violation doctrine applies to §1983 cases.” Canfield v. Douglas Cty.,
619 Fed.Appx. 774, 778 (10th Cir.2015). It does not appear that the Tenth Circuit has
addressed the doctrine’s application to a Bivens claim either. Even if the doctrine should
apply in a general sense, the court finds it does not apply in this case. This is because the
doctrine is triggered by continual unlawful acts, not continual ill effects from the original
violation. Id. at 778-79.
Finally, no basis for tolling of the statute of limitations has been presented.
It is the order of the court that the motion to strike or dismiss (#32) is denied as to its request
to strike and granted as to its request to dismiss. The motion to dismiss (#37) is granted.
This action is dismissed as having been filed outside the statute of limitations.

IT IS SO ORDERED this 17th day of SEPTEMBER, 2018.

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