Akins v. Elizabethtown Police Department et al, No. 3:2008cv00578 - Document 6 (W.D. Ky. 2009)
Court Description: MEMORANDUM AND OPINION by Judge John G. Heyburn, II on 1/12/09; for the reasons set forth, the Court will dismiss the complaint because it is barred by the statute of limitations. The Court will enter a separate Order consistent with this Memorandum Opinion dismissing this action.cc:Plaintiff, pro se (SC)
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE CIVIL ACTION NO. 3:08CV-578-H DERRICK D. AKINS PLAINTIFF v. THE ELIZABETHTOWN POLICE DEPARTMENT et al. DEFENDANTS MEMORANDUM OPINION Plaintiff is a convicted state inmate currently incarcerated at the Northpoint Training Center in Burgin, Kentucky. He has filed this 42 U.S.C. § 1983 action against the Elizabethtown Police Department, Sgt. Danny Kelly, Det. Clinton Turner, and the City of Elizabethtown, Kentucky. Plaintiff alleges that Defendants violated his Fourth Amendment rights by conducting an unsolicited search of his person without probable cause on April 12, 2007. This matter is before the Court for sua sponte screening of the complaint pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons that follow, the Court will dismiss the complaint because it is barred by the statute of limitations. I. When a prisoner initiates a civil action seeking redress from a governmental entity, officer or employee, the trial court must review the complaint and dismiss the action, if the court determines that it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2); McGore, 114 F.3d at 604. A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The trial court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. In order to survive dismissal for failure to state a claim, [f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact). Bell Atl. Corp. v. Twombly, 550 U.S. 544,__, 127 S. Ct. 1955, 1965 (2007) (internal citations omitted). [A] plaintiff s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Twombly, 550 U.S. at __ , 127 S. Ct. at 1964-65 (citations omitted; alteration in Twombly). In reviewing a complaint under this standard, the Court must construe the pleading in the light most favorable to Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998). Although this court recognizes that pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), [o]ur duty to be less stringent with pro se complaints does not require us to conjure up unpled allegations. McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted). And this court is not required to create a claim for the plaintiff. Clark v. Nat l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To command otherwise would require the Court to explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 2 II. The statute of limitations for 42 U.S.C. § 1983 actions is governed by the limitations period for personal injury cases in the state in which the cause of action arose. Wallace v. Kato, 549 U.S. 384, __, 127 S. Ct. 1091, 1094, 166 L. Ed. 2d 973 (2007). In Kentucky § 1983 actions are limited by the one-year statute of limitations found in Ky. Rev. Stat. § 413.140(1)(a). Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990). Although state law establishes the statute of limitations for § 1983 actions, federal law controls on the issue of when the statute of limitations begins to run. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). Federal law establishes that the § 1983 statute of limitations accrues when the plaintiff knew or should have known of the injury that forms the basis of the claim alleged in the complaint. Ruff v. Runyon, 258 F.3d 498, 500 (6th Cir. 2001). In Wallace v. Kato, the United States Supreme Court held that, in cases of alleged Fourth Amendment violations brought under § 1983, the statute of limitations begins to run on the date that the alleged constitutional violations occurred. See Wallace v. Kato, 127 S. Ct. at 1100. Thus, the statute of limitations challenging an unlawful search accrues at the time of the search. See, e.g., Gonzalez v. Entress, 133 F.3d 551, 553 (7th Cir. 1998). The Supreme Court has also recently held that when the face of the complaint shows that an action is time barred, the case may be dismissed summarily upon screening. Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 920-21, 166 L. Ed. 2d 798 (2007). In this case, Plaintiff s § 1983 claims arise out of the police conduct that occurred during the search on April 12, 2007. Plaintiff knew or should have known of the injury that formed the basis of his illegal search on that date. The statute of limitations for Plaintiff s 3 § 1983 cause of action, therefore, expired at the latest on April 12, 2008. Plaintiff did not file the current action until October 31, 2008,1 over six months after the statute-of-limitations deadline. As such, his unlawful search claims are time barred. The Court will enter an Order consistent with this Memorandum Opinion. Date: cc: January 12, 2009 Plaintiff, pro se 4412.008 1 Under the prison mailbox rule, a pro se prisoner s complaint is deemed filed when it is handed over to prison officials for mailing to the court. Cases expand the understanding of this handing-over rule with an assumption that, absent contrary evidence, a prisoner does so on the date he or she signed the complaint. Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (internal citations omitted). Plaintiff signed his complaint on October 31, 2008. 4
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