Opinion
No. 01-2329-KHV.
January 28, 2002
MEMORANDUM AND ORDER
Frank Kirtdoll brings suit against the City of Topeka, Kansas, and numerous Topeka City officers. In his pro se complaint under 42 U.S.C. § 1983, plaintiff alleges that defendants violated his rights under the Fifth and Fourteenth Amendments by demolishing his property. Plaintiff also sues all defendants on state law claims of trespass and conversion. This matter comes before the Court on Defendants' Motion To Dismiss (Doc. #13) filed November 19, 2001 and plaintiff's Motion For Summary Judgment (Doc. #20) filed January 4, 2002. For reasons stated below, defendants' motion is sustained and plaintiff's motion is overruled.
Standards For Motion To Dismiss For Failure To State A Claim
A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Assoc. Wholesale Grocers., Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). The issue in reviewing the sufficiency of plaintiff's complaint is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. Rehab. Servs., 871 F. Supp. 1331, 1333 (D.Kan. 1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). The Court may not assume the role of advocate for a pro se litigant. Hall, 935 F.2d at 1110.
Factual Background
The factual allegations of plaintiff's complaint may be summarized as follows:
On January 4, 1999, defendants, acting under color of state law, demolished plaintiff's buildings and an asphalt parking lot in Topeka. Defendants did not have permission or authority to enter onto or destroy the property. Defendants did not afford plaintiff the proper notices, hearings and opportunity to rehabilitate the property as required by state law and the Fifth and Fourteenth Amendments to the Constitution. As a result of the unlawful destruction of his property, plaintiff suffered actual damages in excess of $100,000 and pain and suffering in the amount of $1,000,000. Plaintiff also requests punitive damages. Plaintiff filed suit on July 5, 2001.
"In the alternative the complainant requests restoration value in the amount of six million dollars." Complaint (Doc. # 1) filed July 5, 2001.
Analysis
Defendants argue that the Court should dismiss plaintiff's complaint because the applicable statute of limitations bars his claims. Plaintiff concedes that his claims are barred by the two year statute of limitations unless saved by K.S.A. § 60-518. See Beck v. City of Muskogee Police Dep't, 95 F.3d 553 (10th Cir. 1999) (state statute of limitations applicable to general personal injury claims supplies limitations periods for § 1983 claims); K.S.A. § 60-513(a)(4) (two year statute of limitations for personal injury claims); K.S.A. § 60-513(a)(2) (two year statute of limitations for conversion claims) K.S.A. § 60-513(a)(1) (two year state of limitations for trespass to property). K.S.A. § 60-518 provides: If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.K.S.A. § 60-518 is a savings statute that affords a plaintiff additional time to bring a second action under certain conditions. For plaintiff to benefit from this provision, however, he must have (1) commenced his first action within due time; (2) failed in his first action other than on the merits, with the failure coming after the relevant statute expired; and (3) commenced his new action within six months of the failure. See Burnett v. Perry Mfg., Inc., 151 F.R.D. 398, 400 (D.Kan. 1993). The complaint does not contain any facts regarding the filing, service, or dismissal of any state court suit.
In response to defendants' motion to dismiss, plaintiff asserts that he commenced "this action" in state court on January 4, 2001. Plaintiff's Response To Defendants' Motion To Dismiss (Doc. #17) filed December 19, 2001 at 2. He states that he voluntarily dismissed the state court action without prejudice and that he commenced this action within six months after he dismissed the state court action. Thus, plaintiff argues that this action is timely.
Defendants counter that K.S.A. § 60-518 does not apply for two reasons. First, they assert that plaintiff never commenced the action in state court. Under Kansas law,
(a) A civil action is commenced at the time of: (1) Filing a petition with the clerk of the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by provision (1).
K.S.A. § 60-203. Defendants assert that plaintiff never commenced the action because he did not obtain service on defendants. Defendants therefore argue that the savings provision of K.S.A. § 60-518 does not apply. See Newell v. Brollier, 239 Kan. 587, 589 (1986). Plaintiff argues that he commenced the state court action within the statute of limitations, but the complaint does not contain this allegation or any facts regarding service of the state court suit.
Defendants also assert that K.S.A. § 60-518 does not toll the statute of limitations in a federal question case. For this proposition they cite Gatlin v. Mo. Pac. R. Co., 631 F.2d 551 (10th Cir. 1980). In Gatlin the Tenth Circuit held that, in a federal question case, whether the statute of limitations is tolled by events occurring after it has accrued is a federal question. Id. at 554; see also 4 Wright Miller, Federal Practice and Procedure § 1056 (2d ed. 1987) (if relevant federal statute provides specific limitations provision, state savings provisions will not apply). Defendants' argument does not recognize the well established principle that in § 1983 suits, federal law borrows the state statute of limitations for personal injury claims, including the state tolling rules. See, e.g., Brown v. Hartshorne Public Schools, 926 F.2d 959 (10th Cir. 1991) (applying Oklahoma savings statute and Oklahoma law which uses transactional approach). Even if plaintiff's original suit in state court did not assert a cause of action under § 1983, Kansas law may save his § 1983 claim if the original state claim was based on the same operative facts upon which plaintiff relies in this action. See Ciszkowski v. Rector, Case No. 95-7086, 1995 WL 681504 (10th Cir. Nov. 2, 1995). See Harnett v. Parris, Case No. 94-4251-SAC, 1995 WL 550036 *6-7 (D.Kan. Aug. 9, 1995) (if complaints in both initial and second action provided substantially same notice of operative facts, then initial and second action are same for purposes of K.S.A. § 60-518); see also Dutoit v. Bd. of Johnson County Comm'rs, 233 Kan. 995, 998 (1983) (pleading need only give other side notice of operative facts for which relief is sought; need not specify legal theory of relief).
At this point, the Court must reject plaintiff's argument that his action is timely, however, because his complaint does not plead a factual predicate for any tolling theory. When the face of the complaint shows that the action was filed beyond the applicable statute of limitations, plaintiff must allege facts sufficient to show that the limitations period should be tolled. See Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir. 1980) (when dates in complaint make clear that right sued upon has been extinguished, plaintiff has burden of establishing factual basis for tolling); S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 425 (3d Cir. 1999); LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509-10 (1st Cir. 1998); LRL Props. v. Portage Metro Housing Auth., 55 F.3d 1097, 1107 (6th Cir. 1995); see also Jackson v. City of Kansas City, Kan., No. 99-2344-KHV, 2000 WL 574986, at *2 (D.Kan. Apr. 6, 2000) (on Rule 12(b)(6) motion, court cannot consider allegations or evidence of tolling outside pleadings). Because plaintiff's complaint does not do so, the Court dismisses plaintiff's complaint. Based on plaintiff's opposition brief, however, the Court finds that plaintiff may be able to correct this error and allege a set of facts which is sufficient to support a tolling theory. The Court therefore grants plaintiff leave to file a motion to amend his complaint to allege grounds for tolling the statute of limitations. Plaintiff is directed to comply with the requirements of D. Kan. Rule 15.1.
IT IS THEREFORE ORDERED that Defendants' Motion To Dismiss (Doc. #13) filed November 19, 2001 be and hereby is SUSTAINED. On or before February 11, 2002, plaintiff may file a motion to amend his complaint to allege grounds for tolling the statute of limitations, in compliance with D. Kan. Rule 15.1.
IT IS FURTHER ORDERED that plaintiff's Motion For Summary Judgment (Doc. #20) filed January 4, 2002 be and hereby is OVERRULED as moot.