Sims v. Zmuda

Decision Date13 December 2021
Docket Number20-3146-SAC
PartiesERIC D. SIMS, Plaintiff, v. JEFFREY ZMUDA, et al., Defendants.
CourtU.S. District Court — District of Kansas

ERIC D. SIMS, Plaintiff,
JEFFREY ZMUDA, et al., Defendants.

No. 20-3146-SAC

United States District Court, D. Kansas

December 13, 2021


SAM A. CROW, U.S. Senior District Judge.

This matter is a civil rights action. The Court conducted an initial review of the case and directed Plaintiff to show cause why his Complaint should not be dismissed for failure to state a claim upon which relief may be granted. (Memorandum and Order to Show Cause, ECF No. 11) (“MOSC”). Before the Court is Plaintiff's response to the MOSC (ECF No. 12).

The MOSC found that the Complaint was subject to dismissal as barred by the statute of limitations. Plaintiff filed his Complaint on May 26, 2020. Plaintiff's claim accrued when he was transferred to Florida on May 20, 2018, more than two years prior to the filing date of this Complaint. See Ajaj v. Roal, No. 14-CV-01245-JPG, 2020 WL 3428023, at *4 (S.D. Ill. June 23, 2020); Allen v. Peal, No. CV 312-007, 2012 WL 2872638, at *2 (S.D. Ga. June 18, 2012), report and recommendation adopted, No. CV 312-007, 2012 WL 2872642 (S.D. Ga. July 12, 2012); Simmons v. Lafler, No. 1:14-CV-1242, 2015 WL 1757075, at *3 (W.D. Mich. Apr. 17, 2015). The MOSC further found no basis for tolling the statute of limitations.

In his response to the MOSC, Plaintiff argues that the mailbox rule should apply. The prison mailbox rule provides that a pro se prisoner's legal filings will be considered timely if given to prison officials for mailing prior to the filing deadline. Price v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 2005).


He states that he placed his Complaint in the hands of corrections officials on May 19, 2020, as indicated by the date stamp on the certificate of service. The Court agrees with Plaintiff and finds the Complaint was timely filed.

Next, the MOSC found that Plaintiff failed to state facts sufficient to support a plausible claim of retaliatory transfer. The facts cited by Plaintiff did not demonstrate that his transfer to a prison in Florida was “substantially motivated as a response to his constitutionally protected conduct.” See Nielander v. Bd. of County Com'rs of County of Republic, Kan., 582 F.3d 1155, 1165 (10th Cir. 2009).

Plaintiff's response to the MOSC repeats the arguments and allegations included in the Complaint and attachments without offering any additional support for his claim. He relies heavily on Defendants Goddard and Burris's statements about the transfer. However...

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