Smith v. Ward et al

Filing 13

ORDER 9 Report and Recommendation. Plf's cause of action against dfts under 42 U.S.C. § 1983 is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) for failure to state a claim upon which relief may be granted. The dismissal of this cause of action constitutes one "strike" under 28 U.S.C. § 28 U.S.C. § 1915(g). Signed by Honorable Stephen P. Friot on 3/5/2018. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
COURTNEY SMITH,
Plaintiff,
-vsRODNEY WARD, et al.,
Defendants.

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Case No. CIV-17-1142-F

ORDER
On December 11, 2017, United States Magistrate Judge Gary M. Purcell
issued a Supplemental Report and Recommendation, recommending that plaintiff’s
cause of action against defendants under 42 U.S.C. § 1983 be dismissed with
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Magistrate Judge
Purcell specifically concluded that plaintiff’s cause of action is barred by the
applicable two-year statute of limitations and thus fails to state a claim upon which
relief may be granted. In the Supplemental Report and Recommendation, Magistrate
Judge Purcell advised plaintiff of her right to file an objection to the recommended
ruling and specifically advised plaintiff that if she chooses to file an objection, she
may present any arguments she has for tolling of the statute of limitations and also
may provide any documents or other evidence in support of her tolling arguments.
Plaintiff filed a timely objection to the Supplemental Report and
Recommendation and a motion for supplemental pleading. Plaintiff asserted that
she suffers from burdens and disabilities, including post-traumatic stress disorder,
which all together constitute a legal disability for tolling the statute of limitations.
Plaintiff requested the court to allow her to submit her health record for consideration
on the tolling issue.

On January 8, 2018, the court entered an order holding in abeyance Magistrate
Judge Purcell’s Supplemental Report and Recommendation. The court granted
plaintiff leave to supplement her pleading with any evidence she has to support her
tolling argument. Plaintiff has submitted a CD containing her medical record, which
the court has carefully reviewed.
State law governs the application of tolling in a § 1983 action. Alexander v.
Oklahoma, 382 F.3d 1206, 1217 (10th Cir. 2004). Oklahoma law permits tolling in
the limited circumstances:
The first circumstance is the existence of a legal disability,
which has been applied in cases where a plaintiff’s
competence is impaired or where the plaintiff has not yet
reached the age of majority. The second circumstance is
when defendants engage in false, fraudulent or misleading
conduct calculated to lull plaintiff[] into sitting on [her]
rights . . . [A]lso . . . [i]n the appropriate case, exceptional
circumstances may justify tolling a statute of limitations.
Young v. Davis, 554 F.3d 1254, 1258 (10th Cir. 2009) (quotations and citations
omitted). Plaintiff bears the burden of establishing a factual basis for tolling.
Aldrich v. McCulloch Props, Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir. 1980).
Upon review of plaintiff’s medical record, the court finds that it fails to
support a factual basis for the existence of a legal disability based upon impaired
competency. Because plaintiff has failed to show a factual basis for the existence of
a legal disability and her filings do not support the other circumstances justifying
tolling, the court concurs with Magistrate Judge Purcell that her 42 U.S.C. § 1983
action is time-barred.

Therefore, the court accepts, adopts and affirms the

Supplemental Report and Recommendation in its entirety.
Accordingly, the Supplemental Report and Recommendation issued by
United States Magistrate Judge Gary M. Purcell (doc. no. 9) is ACCEPTED,
ADOPTED and AFFIRMED. Plaintiff’s cause of action against defendants under
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42 U.S.C. § 1983 is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and § 1915A(b) for failure to state a claim upon which relief may
be granted. The dismissal of this cause of action constitutes one “strike” under 28
U.S.C. § 28 U.S.C. § 1915(g). Judgment shall issue forthwith.
IT IS SO ORDERED this 5th day of March, 2018.

17-1142p003.docx

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