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Gomez v. Owens

United States District Court, E.D. Missouri, Eastern Division

April 12, 2017

AMADO R. GOMEZ, Plaintiff,
v.
SHAWN OWENS, et al., Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE.

         Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42 U.S.C. § 1983. Having reviewed plaintiffs financial information, the Court assesses a partial initial filing fee of $4.00, which is twenty percent of his average monthly deposit. See 28 U.S.C. § 1915(b). Additionally, the Court finds that the case must be dismissed under 28 U.S.C. § 1915(e).

         Standard of Review

         Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To state a claim for relief, a complaint must plead more than "legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a "mere possibility of misconduct." Id. at 679. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Id. at 679.

         The Complaint

         Plaintiff alleges that on April 15, 2011, defendant Owens sprayed him with mace. Owens refused to let him go to the medical unit, he says, and he was forced to rinse off the mace in the shower.

         Discussion

         "Although the statute of limitations is an affirmative defense, a district court may properly dismiss an in forma pauperis complaint under 28 U.S.C. § 1915[e] when it is apparent the statute of limitations has run." Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992). Section 1983 claims are analogous to personal injury claims and are subject to Missouri's five-year statute of limitations. Sulik v. Taney County, Mo., 393 F.3d 765, 766-67 (8th Cir. 2005); Mo. Rev. Stat. §516.120(4).

         In this case, the statute of limitations expired on April 15, 2016. Plaintiff acknowledges that the complaint is untimely, but he says he did not know he could file a lawsuit. Plaintiffs ignorance, however, does not qualify him for tolling of the limitations period. See O 'Reilly v. Dock, 929 S.W.2d 297, 301 (Mo.Ct.App. 1996 ("Mere ignorance on the part of a plaintiff does not toll the statute of limitations where reasonable diligence on his or her part would have revealed the injury or wrongful conduct."). As a result, this action is barred by the statute of limitations.

         Additionally, the complaint does not state whether defendants are being sued in their official or individual capacities. Where a "complaint is silent about the capacity in which [plaintiff] is suing defendant, [a district court must] interpret the complaint as including only official-capacity claims." Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995); Mx v. Norman, 879 F.2d 429, 431 (8th Cir. 1989). Naming a government official in his or her official capacity is the equivalent of naming the government entity that employs the official, in this case the State of Missouri. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). "[N]either a State nor its officials acting in their official capacity are 'persons' under § 1983." Id. As a result, the complaint fails to state a claim upon which relief can be granted.

         Accordingly, IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF No. 2] is GRANTED IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $4.00 within twenty-one (21) days of the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court, " and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding.[1]

         IT IS FURTHER ORDERED that this action is DISMISSED without prejudice.

         An Order of Dismissal will ...


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