March 18, 2011
DAVID SIMMONS, PLAINTIFF,
STEPHEN B. WALLACE, ET AL.,
The opinion of the court was delivered by: John W. Sedwick United States District Judge
[Re: Motion at Docket 15]
ORDER AND OPINION
I. MOTION PRESENTED
At docket 15, plaintiff David Simmons ("plaintiff" or "Mr. Simmons") moves to reinstate his complaint. The court construes the filing as a motion for reconsideration of the order at docket 13 dismissing his complaint.*fn1
Mr. Simmons, a self-represented state prisoner proceeding without
prepayment of the filing fee, filed a civil rights complaint under 42
U.S.C. § 1983.*fn2 The court
screened the complaint pursuant to 28 U.S.C. §
1915(e)(2)(B).*fn3 The court subsequently required Mr.
Simmons to show that "he has filed this action within the limitations
period, or that there are grounds for equitable tolling; otherwise,
this case will be dismissed without further notice."*fn4
Mr. Simmons argued, in response to that aspect of the order
to show cause, that "where the statute of limitations or jurisdiction
is asserted as an affirmative defense, it must be set forth by the
defendants or such defenses are waived."*fn5 In
dismissing the complaint, the court noted that under the Prison
Litigation Reform Act ("PLRA"), the court is obligated to dismiss sua
sponte when a case such as this one fails to state a claim for
relief.*fn6 The court also noted that it had "allowed
plaintiff the same opportunity to respond as he would have were the
defendants to raise the issue in a motion to dismiss."*fn7
Mr. Simmons argues that the court's determination was erroneous.*fn8 Specifically, Mr. Simmons argues that Wyatt v. Terhune*fn9 precludes sua sponte dismissal of his complaint based on the statute of limitations.*fn10 Mr. Simmons is presumably relying on the statement in Wyatt that "it is well-settled that statutes of limitations are affirmative defenses, not pleading requirements."*fn11 Wyatt did not involve sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2)(B). The issue--characterization of the administrative exhaustion requirement under 42 U.S.C. § 1997e(a)--was raised because "[t]he [district] court did not make clear . . . under what provision of the federal rules it was ordering dismissal, or explain its reason for finding nonexhaustion"*fn12 after defendants raised non-exhaustion in a Rule 12(b)(1) motion to dismiss.*fn13
The court recognizes that there is some tension between the notion that statutes of limitations are affirmative defenses and the longstanding principle that where it is apparent from the face of the complaint that the statute of limitations has run, dismissal for failure to state a claim is proper.*fn14 A court is not per se barred from considering affirmative defenses when screening a complaint for failure to state a claim pursuant to § 1915A.*fn15 If the complaint appears to fail to state a claim based on the statute of limitations, the screening court must ensure that the plaintiff has an opportunity to present arguments that the statute of limitations either has not run, or that equitable tolling applies.*fn16
Here, the court provided "plaintiff the same opportunity to respond as he would have had were the defendants to raise the issue in a motion to dismiss."*fn17 The court also explained permissible bases for equitable tolling and described the relevant three-part test.*fn18 As discussed in the order dismissing the complaint, Mr. Simmons did not take that opportunity.
In the present motion, Mr. Simmons does address the possibility of equitable tolling. Specifically, Mr. Simmons argues that Heck v. Humphrey*fn19 warrants equitable tolling of the limitations period in this instance. In that case, the statute of limitations "pose[d] no difficulty while . . . state challenges [were] being pursued [because] the § 1983 claim ha[d] not yet arisen."*fn20 As discussed in the order at docket 7, plaintiff's § 1983 claim arose no later than "the time his petition for hearing before the Alaska Supreme Court was denied in 2002."*fn21 Therefore, Heck has no bearing on the viability of plaintiff's § 1983 claim.
For the reasons above, plaintiff's motion at docket 15 for reconsideration of the order at docket 13 is DENIED.
DATED at Anchorage, Alaska, this 18th day of March 2011.