Khan v. United States of America et al

Filing 16

DECISION AND ORDER signed by Judge Lynn Adelman on 9/18/14 granting 12 Defendants' Motion to Dismiss. This action is dismissed with prejudice, and the Clerk of Court shall enter final judgment. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DIANNE KHAN,
Plaintiff,
v.

Case No. 14-C-0285

UNITED STATES OF AMERICA,
UNITED STATES MARSHALS SERVICE, and
JOHN DOE,
Defendants.

DECISION AND ORDER
Dianne Khan, proceeding pro se, alleges that on March 2, 2006, she was deprived
of her rights under the Fourth Amendment during the course of her arrest by the United
States Marshals Service. She has sued the United States, the United States Marshals
Service, and an individual defendant identified only as “John Doe.” These defendants
have filed a motion to dismiss the complaint under Federal Rule of Civil Procedure
12(b)(6), in which they argue that the plaintiff’s claims are barred by the statute of
limitations.
Initially, I note that the statute of limitations is an affirmative defense, and that
because a plaintiff is not required to plead around affirmative defenses, it is normally
inappropriate to dismiss a complaint on the basis of the statute of limitations. See, e.g.,
Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004). However,
when the plaintiff pleads herself out of court by admitting all the elements of an affirmative
defense in the complaint, the complaint may be dismissed on the basis of that defense.
Id. As I will explain below, in the present case the plaintiff has pleaded facts showing that

her claims are barred by the statute of limitations. Accordingly, dismissal under Rule
12(b)(6) is appropriate.
The only conceivable basis for the plaintiff’s suit against the United States or the
Marshals Service is the Federal Tort Claims Act (“FTCA”). A claim under the FTCA is timebarred unless it is presented in writing to the appropriate federal agency (here, the
Marshals Service) within two years after the claim accrues. 28 U.S.C. § 2401(b). The
plaintiff attached to her complaint a document showing that she did not present her claim
to the Marshals Service until August 15, 2013, well more than two years after her claim
accrued on March 2, 2006. See Compl. Ex. 3. Accordingly, the plaintiff has pleaded
herself out of court on any claim against the United States or the Marshals Service.
The plaintiff’s remaining claim, which is against an individual member (or possibly
members) of the Marshals Service, is cognizable under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The statute of limitations for
a Bivens action is determined by the statute of limitations for personal-injury actions in the
state where the incident forming the basis of the claim occurred. King v. One Unknown
Fed. Corr. Officer, 201 F.3d 910, 913 (7th Cir. 2000). In the present case, the complaint
alleges that Khan’s arrest occurred in Wisconsin, see Compl. p. 3, and in that state the
statute of limitations for personal-injury actions is six years. See Malone v. Corr. Corp. of
Am., 553 F.3d 540, 542 (7th Cir. 2009). As noted, the arrest occurred on March 2, 2006,
and the complaint in the present case was not filed until more than eight years later, on
March 14, 2014. Accordingly, the plaintiff’s Bivens claim is time-barred.

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For the reasons stated, IT IS ORDERED that the defendants’ motion to dismiss the
complaint is GRANTED. This action is dismissed with prejudice, and the Clerk of Court
shall enter final judgment.
Dated at Milwaukee, Wisconsin this 18th day of September, 2014.

s/ Lynn Adelman
_____________________________
LYNN ADELMAN
District Judge

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