Opinion
Case No. CIV-18-1154-F
02-26-2019
LASHAWN RAY GREEN, Plaintiff, v. ROBERT DESO, et al., Defendants.
REPORT AND RECOMMENDATION
On November 19, 2018, LaShawn Green (Plaintiff), a state prisoner appearing pro se, initiated this action against four Defendants, seeking relief under 42 U.S.C. § 1983 for claimed violations of his constitutional rights in August 2016. See Doc. 1.
Because Plaintiff declared "that [he] placed [the] complaint in the prison's legal mail system, with correct postage attached, on the 19th day of November, 2018," it is deemed filed on that date. See Fleming v. Evans, 481 F.3d 1249, 1255 n.2 (10th Cir. 2007).
The undersigned construes Plaintiff's pro se filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Plaintiff named a bail bondsman, an insurer, a former Oklahoma Insurance Commissioner, and a manager of the Oklahoma Insurance Department's bail bonds division as Defendants. See Doc. 1, at 1, 4-5.
Citations to a court document are to its electronic case filing designation and pagination. The undersigned alters Plaintiff's use of the uppercase but otherwise quotes him verbatim.
United States District Judge Stephen P. Friot has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 4.
I. Screening.
Federal law requires the court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In fulfilling this obligation, the court considers, in part, the timeliness of Plaintiff's claims. This is consistent with "the long-standing rule that '[i]f the allegations . . . show that relief is barred by the applicable statutes of limitations, the complaint is subject to dismissal for failure to state a claim.'" Vasquez Arroyo v. Starks, 589 F.3d 1091, 1096 (10th Cir. 2009) (quoting Jones v. Bock, 549 U.S. 199, 215 (2007)).
II. Order to show cause.
On screening of Plaintiff's complaint, it appeared on its face that the statute of limitations barred any stated claim, so the undersigned notified Plaintiff that summary dismissal of the complaint was warranted. See Doc. 18, at 2. The undersigned explained that Plaintiff "ha[d] made specific reference in his complaint to the dates of the purported violations of his civil rights, citing events occurring in August 2016[ and that, b]ased on those allegations, the relief [he] seeks in the instant complaint—filed on November [19], 2018—is time-barred." Id. The undersigned gave Plaintiff the opportunity to address the issue by "order[ing] him to show cause—in other words, to fully detail why his complaint should not be promptly dismissed by the court on statute of limitations grounds" and instructed that he "should tell the court any reason why the statute of limitations should not bar his claims, reasons including but not limited to the applicability of the two-year statute, the applicability of a savings provision, the accrual date of his claims, and the application of equitable tolling." Id. at 3. Plaintiff filed a timely response to the show cause order, see Doc. 19, and the matter is at issue.
For the following reasons, Plaintiff's showing falls short, and the undersigned recommends the dismissal with prejudice of this action.
III. Analysis.
"State statutes of limitations applicable to general personal injury claims supply the limitations periods for § 1983 claims, but federal law governs the time of accrual of § 1983 claims." Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 557 (10th Cir. 1999) (citations omitted). Oklahoma's two-year statute applies to Plaintiff's claims. See Meade v. Grubbs, 841 F.2d 1512, 1522 (10th Cir. 1988), abrogated on other grounds by Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760 (10th Cir. 2013); Okla. Stat. tit. 12, § 95(A)(3). And "[s]ince 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 (internal quotation marks omitted).
In his attempt to avoid the summary dismissal of his action, Plaintiff does not dispute the undersigned's findings that the alleged violations of his constitutional rights accrued in August 2016 and that, consequently, the relief he seeks in his November 2018 complaint appears to be time-barred. See Doc. 19. Instead, he readily acknowledges his "fail[ure] to file his claim within the 2 year statute of limitations set forth in Oklahoma law." Id. at 1. Nonetheless, he submits that "[t]he facts presented will prove that the Plaintiff was not negligent in failing to file and that he was hindered by both government officials and health issues that renderd him unable to properly research the law and file his pleadings." Id. He "asks . . . this court to use its discretion and toll the statute of limitations." Id. at 3.
The undersigned has carefully reviewed Plaintiff's factual submissions and his explication of events occurring from August 2016 through early November 2018. See id. In order "[t]o determine whether [Plaintiff's] allegations justify tolling, [this Court] consider[s] Oklahoma law." Gilyard v. Gibson, 612 F. App'x 486, 487 (10th Cir. 2015) (citing Alexander v. Oklahoma, 382 F.3d 1206, 1217 (10th Cir. 2004).
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. [And,] 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 and citations omitted). Oklahoma's "[e]xceptions to statutes of limitation are strictly construed and are not enlarged on consideration of apparent hardship or inconvenience." Resolution Trust Corp. v. Grant, 901 P.2d 807, 813 (Okla. 1995). A plaintiff bears "the burden of establishing a factual basis for tolling the statute." Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980) (citations omitted).
Plaintiff did not meet his burden here. See Doc. 19. He first seeks tolling based on his sworn declaration that from August 15, 2016 until November 28, 2017, he "had no access to law library while at Comanche County Detention Center. All requests were denied." Id. at Att. 1. Nonetheless, Plaintiff does not explain how the lack of library access actually hindered his ability to timely file his § 1983 claims in federal court. See Watkins v. Craft, 455 F. App'x 853, 856 (10th Cir. 2012) (rejecting inmate's contention that lack of law library warranted tolling of a § 1983 claim on grounds that he has not explained "specifically why he needed . . . a law library to prepare a timely § 1983 complaint containing the basic allegations supporting [his] claim or why he was otherwise prevented from 'litigating' [his] claim.").
Next, Plaintiff states under penalty of perjury that from November 28, 2017 until November 6, 2018, he "was hindered by cancer related medical issue's" and that he "filed the suit in current litigation within 3 months of finishing chemo-therapy and once [he] was able to function again." Doc. 19, Att. 1. He describes a six-month period after his arrival at Lexington Correctional Center "filled with medical runs" to outside facilities "at least twice a week in addition to constant chronic care appointments at the facility"; "having an open heart procedure performed in which a lombodomy was performed and ½ of his lung was removed"; being "hospitalized for 19 days at this point"; and, "[a]fter surgery" making "continued medical runs off facility and beg[inning] Chemo-therapy treatments that effectively incapacitated him for the following 5 months." Doc. 19, at 2.
The undersigned has also considered Plaintiff's supporting documentation. See Doc. 19, Att. 2.
While the undersigned is sympathetic and while this was doubtless a busy and difficult period for Plaintiff, as previously noted, Oklahoma's "[e]xceptions to statutes of limitation are strictly construed and are not enlarged on consideration of apparent hardship . . . ." Resolution Trust Corp., 901 P.2d at 813. Plaintiff has failed to do what he must under Oklahoma law: show that he suffered from a legal disability, establish that Defendants somehow lulled him into inaction during the two-year period beginning in August 2016, or show that he was somehow precluded from filing a timely complaint. See Doc. 19.
Because it is clear from the face of Plaintiff's complaint, see Doc. 1, that his right to pursue this action expired in August 2018, and because he has failed to show that any tolling provision is available "to cure his timeliness problem . . . ." Vasquez Arroyo, 589 F.3d at 1098, Plaintiff's complaint—filed on November 19, 2018—fails to state a claim on which relief can be granted.
IV. Recommendation and notice of right to object.
For the stated reasons, the undersigned recommends the dismissal with prejudice of this action under 28 U.S.C. § 1915A(b)(1).
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before March 19, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 26th day of February, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE