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Cunningham v. City of Waukomis Police Dept.

United States District Court, W.D. Oklahoma

March 5, 2018

KEITH CUNNINGHAM, Plaintiff,
v.
CITY OF WAUKOMIS POLICE DEPT., Defendant.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Keith Cunningham, a federal prisoner appearing pro se, has filed a Second Amended Complaint under 42 U.S.C. § 1983 alleging constitutional violations through excessive force during his arrest. [Doc. No. 17]. United States District Judge David L. Russell has referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons set forth herein, it is recommended that the Second Amended Complaint be dismissed with prejudice based on expiration of the statute of limitations.

         I. Background

         Plaintiff alleges that during an arrest, police officers excessively beat and tasered him after he was already incapacitated on the ground. See Sec. Amend. Compl. at 6-7. Plaintiff incorporates a “Notice of Tort Claim” stating that the incident occurred on April 16, 2013. Id. at 10. Plaintiff names the City of Waukomis Police Department[1] and John Doe Officers 1-10. See Id. at 4.

         II. Screening

         A. Governing Standard

         Because Plaintiff has sued a government entity and employees, the Court has a duty to screen the Second Amended Complaint. See 28 U.S.C. § 1915A(a). To that end, the Court must dismiss any claim that: (1) fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1)-(2). Additionally, the Court may dismiss, sua sponte, based on an affirmative defense such as statute of limitations, “‘when the defense is obvious from the face of the complaint and no further factual record is required to be developed.'” Starr v. Kober, 642 F. App'x 914, 918 (10th Cir. 2016) (quoting Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006)).

         B. Analysis

         “State statutes of limitations applicable to general personal injury claims supply the limitations periods for § 1983 claims, [and] federal law governs the time of accrual . . . .” Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 557 (10th Cir. 1999) (citations omitted). Here, Oklahoma's two-year statute of limitations applies to Plaintiff's claims. See Meade v. Grubbs, 841 F.2d 1512, 1522 (10th Cir. 1988); Okla. Stat. tit. 12, § 95(A)(3). “Since the injury in a § 1983 case is the violation of a constitutional right, such claims accrue when the plaintiff knows or should know that his or her constitutional rights have been violated.” Beck, 195 F.3d at 557 (quotation omitted). So, “[c]laims 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.” Id. at 558 (quotation omitted).

         Based on Plaintiff's own attachment, the alleged excessive force occurred in Oklahoma on April 16, 2013. His claims would have accrued the same day, and thus his statute of limitations expired on April 16, 2015. However, Plaintiff did not file his original Complaint until December 1, 2017. [Doc. No. 1].

         Oklahoma permits tolling in limited circumstances:

The first circumstance is the existence of a legal disability, which has been applied in cases where a plaintiff's competency 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 plaintiffs into sitting on their rights. [Finally, ] in the appropriate case, exceptional circumstances may justify tolling a statute of limitations.

Young v. Davis, 554 F.3d 1254, 1258 (10th Cir. 2009) (quotations, alterations, and citations omitted). Oklahoma's exceptions to a statute of limitations “are strictly construed and are not enlarged on consideration of apparent hardship or inconvenience.” Calvert v. Swinford, 382 P.3d 1028, 1033 (Okla. 2016).

         Here, there is no suggestion that Plaintiff has been under a legal disability[2] or that anyone has engaged in fraud or misleading conduct. Further, the Court finds no exceptional circumstances justifying Plaintiff's lengthy delay in seeking relief in this Court. So, the Court should find that Plaintiff's claims are time-barred and should dismiss his Second Amended Complaint with prejudice. See Gee v. Pacheco, 627 F.3d 1178, ...


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