United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
plaintiff, Edgar Futrell, brings a 42 U.S.C. § 1983
claim alleging that his dentures were illegally branded while
he was an inmate housed at Missouri Eastern Correction
Center. In separate motions, defendants, Corizon LLC and
Jeffrey Palmore, each move to dismiss for failure to state a
claim upon which relief can be granted. The Department of
Corrections has not been served; however, I will grant both
motions and dismiss this case as to all defendants with
1997 to 2010, plaintiff was incarcerated at the Missouri
Eastern Correctional Center. He alleges that in mid-2001, he
agreed to have three teeth extracted in order to receive
replacement dentures. According to the complaint, the
dentures broke in 2014, and plaintiff discovered that the
dentures were branded with his name and Missouri Department
of Corrections identification number. He then commenced this
lawsuit on December 2018 in state court; Corizon removed the
case to this Court. Plaintiff alleges that this branding
constituted a violation of his First, Fourth, Fifth, Sixth,
Eighth, Tenth, and Fourteenth Amendments. Collectively,
defendants argue that the statute of limitations has expired
and that the complaint lacks a sufficient factual basis to
support the alleged constitutional violations.
8(a)(2), Fed. R. Civ. P., provides that a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” In
Bell Atlantic Corp. v. Twombly, the Supreme Court
clarified that Rule 8(a)(2) requires complaints to contain
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” 550
U.S. 544, 555 (2007); accord Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009). Specifically, to survive a motion to
dismiss, a complaint must contain enough factual allegations,
accepted as true, to state a claim for relief “that is
plausible on its face.” Twombly, 550 U.S. at
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the legal sufficiency of the complaint. When considering a
12(b)(6) motion, the court assumes the factual allegations of
a complaint are true and construes them in favor of the
plaintiff. Neitzke v. Williams, 490 U.S. 319, 326-27
(1989). I am not, however, required to accept the legal
conclusions the plaintiffs draw from the facts alleged.
Id. at 555; Retro Television Network, Inc. v.
Luken Commc'ns, LLC, 696 F.3d 766, 768-69 (8th Cir.
has failed to state a claim upon which relief can be granted
and dismissal with prejudice is appropriate in this case
because the factual allegations in the complaint are not
actionable. First, plaintiff has not in fact “been
branded” because branding requires a “permanent
mark made on human tissue by burning with a hot iron or other
instrument.” See Mo. Rev. Stat. 324.520.1(2).
Having removable dentures marked with identification markers
is not a brand. Second, Missouri law requires that dentures
have marks identifying the wearer. See Mo. Rev.
Stat. § 332.364. The dentures provided to plaintiff when
he was incarcerated contained identification marks, and there
is no plausible way to construe this as
“branding.” Therefore, plaintiff has failed to
allege a claim on which relief may be granted.
the statute of limitations for plaintiff to allege a claim
has lapsed, thereby barring his claim. A § 1983 claim
does not contain its own statute of limitations, however,
§ 1983 claims are governed by a state's statute of
limitations governing personal-injury claims. Walker v.
Barrett, 650 F.3d 1198, 1205 (8th Cir. 2011) (citing
Wilson v. Garcia, 471 U.S. 261, 279-80 (1985),
superseded on other grounds by 28 U.S.C. §
1658(a)). Under Missouri law, personal-injury claims must be
brought within five years and medical malpractice claims
within two years. Id. citing Mo. Rev. Stat
§ 516.120.4 (governing personal injury actions); see
also Mo. Rev Stat. § 516.105.1 (governing medical
plaintiff's claim is time barred because the statute of
limitations for personal injury actions begins when the
damage is capable of becoming known, not when the injury is
actually discovered. H.R.B. v. Rigali, 18 S.W.3d
440, 443 (Mo.Ct.App. 2000). Plaintiff alleges his injury
occurred in 2001, and he filed this lawsuit in 2018, which is
well past the time to file a personal injury lawsuit.
Further, plaintiff discovered the branded dentures two years
past the statute of limitations for medical malpractice
claims. See Mo. Rev. Stat 516.105.1. Plaintiff's
argues that “the continuing violation doctrine”
tolls the statute; however, this is not applicable because
the doctrine is for ongoing violations in employment
discrimination cases, not personal injury actions.
Plengemeier v. Thermadyne Industries, Inc., 409
S.W.3d 395, 400 (Mo.App. E.D. 2013). Plaintiff has failed to
state a claim upon which relief can be granted and I will
grant the motions to dismiss with prejudice.
IT IS HEREBY ORDERED that Jeffrey
Palmore's motion to dismiss  and Corizon LLC's
motion to dismiss  are granted. This case shall be
dismissed as to all defendants with prejudice for plaintiffs
failure to state a claim upon which relief can be granted.
separate Order of Dismissal is entered this same date.
 Because the case was removed by
defendant and defendant paid the filing fee and then filed
the motion to dismiss, this Court did not conduct the
frivolity analysis that otherwise would have been ...