United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.
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.
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 and John Doe Officers 1-10. See
Id. at 4.
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
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
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.
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
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.
there is no suggestion that Plaintiff has been under a legal
disability 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, ...