United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior Judge
Plaintiff, James Kern, is in the custody of the Federal Bureau of Prisons, currently incarcerated at the Federal Correctional Complex (Low) in Forrest City, Arkansas. He initiated this action on December 16, 2015 by filing pro se a Prisoner Complaint (ECF No. 1) alleging violations of his constitutional rights while he was incarcerated at the Federal Correctional Institution in Englewood, Colorado.
On March 15, 2016, Magistrate Judge Gordon P. Gallagher ordered Plaintiff to show cause in writing why the action should not be dismissed as barred by the statute of limitations and also ordered Plaintiff to file an Amended Complaint that stated a viable Bivens claim if he wished to pursue any claims in this action. (ECF No. 9). Plaintiff was warned that if he failed to show cause in writing and file an Amended Complaint within thirty days, the action would be dismissed without further notice.
Plaintiff has failed to show cause or file an Amended Complaint within the time allowed. He has failed to communicate with the Court in any way since the March 15, 2016 Order.
Mr. Kern has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 8). Therefore, the Court must dismiss the action if Mr. Kern’s claims are frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). 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. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). For the reasons stated below, the Court will dismiss the action as legally frivolous.
The Court must construe the Complaint liberally because Plaintiff 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.
I. The Complaint
Plaintiff alleges that his Fifth Amendment due process rights were violated when he was sent to the SHU on January 26, 2012 and the Defendants “converted Plaintiff’s property [worth $654.90] to their own use and benefit, and negligently failed and neglected to maintain proper control of the Plaintiff’s peroperty [sic] . . . .” (ECF No. 1 at 4). He also argues that he suffered consequential damages as a result of the conversion of his property because one of the items taken was his prescription glasses. (Id. at 5). As a result, Plaintiff alleges his eyesight has been permanently damaged. He seeks monetary relief.
In his Complaint, Plaintiff indicated that there is a formal grievance procedure at the prison and that he has exhausted the available administrative remedies. (ECF No. 1 at 7). The Court is aware that Plaintiff previously filed an almost identical case in this court, Kern v. Andrews, 15-cv-957-LTB, which was dismissed on August 26, 2015 without prejudice for disregarding a court order and failing to proceed as required by court rules.
A. Statute of Limitations
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 under § 1915 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 statute of limitations for a Bivens action arising in Colorado is two years. See Industrial Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968, and n. 4 (10th Cir. 1994). Under federal law, the statute of limitations begins to run “when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action.” Id. at 968-69.
Mr. Kern alleges that his property was confiscated on or about January 26, 2012, when he was sent to the SHU. The allegations of the Complaint indicate that he was aware of the confiscation at that time, or at the very latest, when he was released from the SHU. Mr. Kern failed to respond in any way to the Court’s order directing him to show ...