Starr v. Kober
| Decision Date | 11 March 2016 |
| Docket Number | No. 15-6219,15-6219 |
| Parties | DANIEL PAUL STARR, Plaintiff - Appellant, v. OFFICER KOBER, Correctional Officer; SERGEANT BASHEAR; SERGEANT HAUNG, grievance officer; H.A. RIOS, JR., Security Warden; R. WHITTEN, Executive Warden; B. GIBSON, Ex-Warden; LIEUTENANT JOHNS; C. BARNARD; FNU RIVERA; FNU PLUME; POPPEL; DAVE MILLER; C. CHESTER; H. RIOS; B.R. GIBSON, Wardens and Ex-Wardens; GEO GROUP, INC.; OKLAHOMA DEPARTMENT OF CORRECTIONS; GUILFOYLE, Director's Designee; DEBBIE MORTON, Director's Designee; MELINDA FLEENER, Medical HSA; REID, Warden's Secretary; DIAMONDBACK CORRECTIONAL FACILITY; CIMMARON CORRECTIONAL FACILITY; GREAT PLAINS CORRECTIONAL FACILITY; LAWTON CORRECTIONAL FACILITY; ROBERT PATTON, Director ODOC, Defendants - Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(W.D. Okla.)
ORDER AND JUDGMENT*Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
Daniel Paul Starr appeals from the district court's dismissal of his complaint for failure to state a claim and the dismissal of one of his claims as time-barred under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
In July 2013, Mr. Starr, an Oklahoma state prisoner, filed a pro se complaint against Officer Kober and other officials at the Lawton Correctional Facility, where he was being held.1 The complaint alleged, among other things, that Officer Kober slammed a cell door against Mr. Starr's shoulder, causing his other shoulder to hit the cell wall. Mr. Starr sued under 42 U.S.C. § 1983, alleging 1) excessive force, 2) conspiracy, 3) retaliation, and 4) other unspecified claims. He also alleged state law claims.
On August 21, 2013, Mr. Starr filed a "Motion to Amend" his complaint, which the district court construed as a supplement because it included allegations of facts thathappened after Mr. Starr filed his original complaint. See Fed. R. Civ. P. 15(d) ().
Mr. Starr subsequently filed several other documents, in which he attempted to add new allegations. On December 10, 2013, the district court, acknowledging these filings, determined Mr. Starr could amend his original complaint, but only if it "contain[ed]—in one document—all claims and allegations Mr. Starr intends to pursue." Doc. 14 at 7-8 (emphasis in original). The district court admonished Mr. Starr that if he failed to comply with this order by December 31, 2013, the district court would consider only Mr. Starr's original complaint and the supplement.
On December 31, 2013, Mr. Starr filed an amended complaint, which the district court struck for failure to comply with the December 10, 2013 order. The court reiterated its instructions and allowed Mr. Starr until January 21, 2014, to file a complaint complying with its order.
On February 21, 2014, after Mr. Starr was granted additional time, he filed another amended complaint, which was referred to a magistrate judge.
On October 6, 2015, the magistrate judge recommended that Mr. Starr's February 21, 2014 amended complaint be stricken for its failure to comply with 1) the district court's order requiring a single document, and 2) Federal Rule of Civil Procedure 8. He then considered whether Mr. Starr's original complaint and the August 21, 2013 supplement should be dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
The magistrate judge construed Mr. Starr's first claim for assault and battery to be an Eighth Amendment excessive force claim and recommended it be dismissed as time-barred under Oklahoma's two-year statute of limitations and for failure to state a claim. He noted that, although Mr. Starr dated the complaint July 5, 2013, it was filed in district court on July 9, 2013, more than two years after July 6, 2011, the date of the alleged incident. And Mr. Starr failed to "allege either that he used the prison's legal mail system or timely used the prison's regular mail system," ROA, Vol. 1 at 315, as required by Price v. Philpot, 420 F.3d 1158 (10th Cir. 2005).
The magistrate judge also recommended against equitable tolling of the limitations deadline for Mr. Starr absent a proper showing in his objection to the report and recommendation that tolling should be allowed.
The magistrate judge further recommended dismissal of Mr. Starr's conspiracy, retaliation, and other unspecified federal claims because they were conclusory and failed to allege specific facts.
The district court adopted the magistrate judge's report and recommendation in full over Mr. Starr's objection and entered judgment.2 The district court also dismissed Mr. Starr's pendent state claims, to the extent he raised any, without prejudice.
On appeal, Mr. Starr contends his Eighth Amendment claim should not be considered time-barred, the limitations period should have been equitably tolled, his claims were adequately pled, and he was denied the right to amend his complaint.3
We affirm the dismissal of Mr. Starr's Eighth Amendment claim as time-barred because the limitations period had run and the district court did not abuse its discretion in declining to apply equitable tolling.4 We affirm the dismissal of Mr. Starr's other federal claims for failure to state a claim. We also affirm the striking of Mr. Starr's amended complaints because the court gave Mr. Starr ample opportunity and direction to comply with Rule 8 and he failed to do so.
A. Standards of Review
"We review de novo the district court's decision to dismiss an IFP complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim." Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). A district court may dismiss a pro se complaint for failure to state a claim under 28 U.S.C. § 1915 when 1) "it is obvious that the plaintiff cannot prevail on the facts he has alleged" and 2) "it would be futile to give him an opportunityto amend." Id. (quotation omitted). "In determining whether dismissal is proper, we must accept the allegations of the complaint as true and we must construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff." Trujillo v. Williams, 465 F.3d 1210, 1224 (10th Cir. 2006) (quotation omitted).
"We apply the same standard of review for dismissals under § 1915(e)(2)(B)(ii) that we employ for Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for failure to state a claim." Kay, 500 F.3d at 1217. This includes the Twombly plausibility standard. Id. at 1218 (). We therefore "look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief," Alvarado v. KOB-TV, L.L.C., No. 06-2001, 493 F.3d 1210, 1215 (10th Cir.2007), and consider adequate only those claims that "raise a right to relief above the speculative level," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Under this standard, "[i]f the allegations [in the complaint] show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim." Jones v. Bock, 549 U.S. 199, 215 (2007).
"We review the district court's refusal to apply equitable tolling for an abuse of discretion." Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir. 2010) (quotation omitted).
We also review for abuse of discretion the district court's decision to strike Mr. Starr's amended complaints. See Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir.2002) ().
We affirm the district court's dismissal of Mr. Starr's claim as time-barred because 1) he has not made the necessary showing of timeliness to invoke the prison mailbox rule, and 2) he has not shown the district court abused its discretion in declining to apply equitable tolling.
The district court accepted the magistrate judge's recommendation to dismiss the Eighth Amendment claim. One of the bases on which it did so is that Mr. Starr failed to file his complaint within the statute of limitations.
"A complaint may be dismissed sua sponte under § 1915 based on an affirmative defense—such as statute of limitations—only when the defense is obvious from the face of the complaint and no further factual record is required to be developed." Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (quotation omitted).
Oklahoma law establishes the relevant two-year statute of limitations for Mr. Starr's excessive force claim. See Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 557 (10th Cir. 1999) (); Okla. Stat. tit. 12, § 95(A)(3) (). The door-slamming incident with Officer Kober occurred on July 6, 2011. Mr. Starr dated his complaint July 5, 2013, but it was filed indistrict court on July 9, 2013. Mr. Starr argues the complaint was timely filed under the prison mailbox rule.
Under the prison mailbox rule "an inmate who places a federal civil rights complaint in the prison's internal mail system will be treated as having 'filed' that complaint on the date it is given to prison authorities for mailing to the court." Price, 420 F.3d at 1165. A prisoner can establish timely submission of legal filings to a prison official under the mailbox rule by "either (1) alleging and proving that he or she made timely use of the prison's legal mail system if a satisfactory system is available, or (2) if a legal system is not available, then by timely use of the prison's...
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