United States District Court, D. Colorado
ORDER DIRECTING PLAINTIFF TO SHOW CAUSE AND TO FILE SECOND AMENDED COMPLAINT
Gordon P. Gallagher, United States Magistrate Judge.
Plaintiff, Joshua Lamont Sutton, is a prisoner in the custody of the Colorado Department of Corrections at the Centennial Correctional Facility in Canón City, Colorado. Mr. Sutton has filed pro se an Amended Complaint (ECF No. 6) pursuant to 42 U.S.C. § 1983 asserting violations of his constitutional rights from 1999 to the present. Mr. Sutton seeks damages and declaratory relief.
The court must construe the Amended Complaint liberally because Mr. Sutton is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, Mr. Sutton will be ordered to show cause why claims one, two and three asserted in the Amended Complaint should not be dismissed as untimely. Mr. Sutton will also be directed to file a Second Amended Complaint.
I. Order to Show Cause
Mr. Sutton asserts four claims for relief in the Amended Complaint. Claims one and two are based on assaults by other inmates that occurred in August 1999 and January 2011, respectively. (ECF No. 6, at 5). In claim three, Mr. Sutton asserts an Eighth Amendment claim based on the following facts: failing to protect him from assaults by other inmates; repeatedly housing him in solitary confinement; and releasing him from prison twice without helping him secure social security benefits for his mental disorders. (Id. at 7). All of these events are alleged to have occurred on or before October 2011. (See generally Id. at 4-5, 7).
The statute of limitations is an affirmative defense. See Fed. R. Civ. P. 8(c)(1). However, the court may dismiss a claim sua sponte on the basis of an affirmative defense if the defense is “obvious from the face of the complaint” and “[n]o further factual record [is] required to be developed in order for the court to assess the [plaintiff’s] chances of success.” Yellen v. Cooper, 828 F.2d 1471, 1476 (10th Cir. 1987); see also Fratus v. DeLand, 49 F.3d 673, 676 (10th Cir. 1995) (stating that dismissal under § 1915 on the basis of an affirmative defense is permitted “when the claim’s factual backdrop clearly beckons the defense”).
The applicable statute of limitations for a § 1983 claim in Colorado is two years. See Blake v. Dickason, 997 F.2d 749, 750-51 (10th Cir. 1993). The statute of limitations begins to run when a claim accrues. Under federal law, a § 1983 claim accrues “when the plaintiff knows or has reason to know of the injury which is the basis of his action.” Kripp v. Luton, 466 F.3d 1171, 1175 (10th Cir. 2006) (internal quotation marks omitted).
The events on which Mr. Sutton’s first, second and third claims are premised occurred between August 1999 and October 2011. In addition, Mr. Sutton alleges facts that demonstrate he was aware of his injuries when they occurred. Therefore, because the original Complaint in this action was not filed until April 22, 2015, the running of the statute of limitations is obvious from the face of the Amended Complaint.
“[W]hen a federal statute [like § 1983] is deemed to borrow a State’s limitations period, the State’s tolling rules are ordinarily borrowed as well . . . .” Heimeshoff v. Hartford Life & Accident Ins. Co., 134 S.Ct. 604, 616 (2013). Thus, in most § 1983 actions, “a state statute of limitations and the coordinate tolling rules” are “binding rules of law.” Board of Regents v. Tomanio, 446 U.S. 478, 484 (1980).
The State of Colorado recognizes the doctrine of equitable tolling to suspend a statute of limitations period “when flexibility is required to accomplish the goals of justice.” Morrison v. Goff, 91 P.3d 1050, 1053 (Colo. 2004) (internal quotation marks omitted). For example, equitable tolling of a statute of limitations is appropriate when “plaintiffs did not timely file their claims because of ‘extraordinary circumstances’ or because defendants’ wrongful conduct prevented them from doing so.” Id. However, “when the dates given in the complaint make clear that the right sued upon has been extinguished, the plaintiff has the burden of establishing a factual basis for tolling the statute.” Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir. 1980).
Mr. Sutton does not allege any facts to suggest that the applicable statute of limitations should be tolled as a matter of equity or for any other reason. Therefore, Mr. Sutton will be ordered to show cause why claims one, two and three of the Prisoner Complaint should not be dismissed as untimely.
II. Order to Amend West
A. Claims One and Two
Even if claims one and two are not time-barred, they are asserted against private individuals who are inmates at the Centennial Valley Correctional Facility, ...