United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK,
Plaintiff, Ray Nunn, is in the custody of the Colorado Department of Corrections (CDOC) at the Fremont Correctional Facility (FCF) in Canón City, Colorado. He has filed a Prisoner Complaint, pursuant to 28 U.S.C.
§ 1343 and 42 U.S.C. § 1983, claiming a deprivation of his constitutional rights.
On October 7, 2015, Magistrate Judge Gordon P. Gallagher reviewed the Complaint and determined that it was deficient because the § 1983 claims appeared to be time barred; Plaintiff failed to allege the personal participation of Defendant Archuleta in the alleged constitutional deprivations; and, the allegations of the Complaint failed to state an arguable due process or equal protection claim. (ECF No. 5). Magistrate Judge Gallagher directed Mr. Nunn to file an Amended Complaint within 30 days of the October 7 Order and to show cause why this action should not be dismissed as time-barred. (Id.). Magistrate Judge Gallagher warned Plaintiff in the October 7 Order that failure to comply by the court-ordered deadline could result in dismissal of this action without further notice. (Id.).
Mr. Nunn has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Subsection (e)(2)(B)(i) requires a court to dismiss sua sponte an action at any time if the action is frivolous. A legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams, 490 U.S. 319, 324 (1989).
The Court must construe the Complaint liberally because Mr. Nunn 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 act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons discussed below, this action will be dismissed.
I. The Complaint
Mr. Nunn’s handwriting is difficult to decipher. Notwithstanding, the Court discerns the following allegations in the Complaint. On July 11, 2013, Defendants Relich and Hansen confiscated Plaintiff’s personal property, contrary to the prison’s procedures. According to Plaintiff, other inmates who transferred to FCF from private facilities were allowed to receive personal property that was not listed on their personal property sheets, but he was not. Mr. Nunn alleges that Defendant Warden Archuleta “allowed [Defendants Relich and Hansen] to treat Mr. Nunn differently than other inmates who are [ ] similarly situated.” (ECF No 1 at 3). Plaintiff claims that the Defendants violated his Fourteenth Amendment due process and equal protection rights. He seeks monetary and injunctive relief.
A. Statute of Limitations
State law determines the applicable statute of limitations for a § 1983 action. See Owens v. Okure, 488 U.S. 235, 249-50 (1989) (holding that “where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions.”). 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) (citing COLO.REV.STAT. (C.R.S.) § 13-80-102(1)(i) (residual statute of limitations for personal injury actions).
Federal law governs when a § 1983 claim accrues. Kripp v. Luton, 466 F.3d 1171, 1175 (10th Cir. 2006) (internal quotation marks omitted). A § 1983 claim accrues, and the limitation period commences, “when the plaintiff knows or has reason to know of the injury which is the basis of his action.” Id. at 1175.
Mr. Nunn alleges that his property was confiscated on July 13, 2013. The allegations of the Complaint indicate that he was aware of his constitutional injuries at the time they occurred, more than two years prior to the commencement of this action.
Although the statute of limitations is an affirmative defense, see Fed. R. Civ. P. 8(c)(1), 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”).
In the October 7 Order, Magistrate Judge Gallagher directed Mr. Nunn to show cause, in writing, within 30 days, why this action should not be dismissed as time-barred. (ECF No. 5). Plaintiff ...