United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING IN FORMA PAUPERIS STATUS, DISMISSING
COMPLAINT, AND DIRECTING PLAINTIFF TO SHOW CAUSE
JANE MAGNUS-STINSON, JUDGE
In Forma Pauperis
plaintiff's request to proceed in forma pauperis
[dkt. 2] is granted. The assessment of even a partial filing
fee is not feasible at this time. Notwithstanding the
foregoing ruling, the plaintiff owes the filing fee.
“All [28 U.S.C.] § 1915 has ever done is excuse
pre-payment of the docket fees; a litigant remains
liable for them, and for other costs, although poverty may
make collection impossible.” Abdul-Wadood v.
Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996).
Court will now screen the complaint subject to screening
pursuant to 28 U.S.C. § 1915A(b). This statute directs
that the Court dismiss a complaint or any claim within a
complaint that “(1) is frivolous, malicious, or fails
to state a claim upon which relief may be granted; or (2)
seeks monetary relief from a defendant who is immune from
such relief.” Id. “A complaint is
subject to dismissal for failure to state a claim if the
allegations, taken as true, show the plaintiff is not
entitled to relief.” Jones v. Bock, 549 U.S.
199, 215 (2007).
Dacia Nakema Ward is an inmate at the Vigo County Jail. In
this civil rights action he names defendants Patricia Bower,
Vigo County Sheriffs Department and Vigo County. Mr. Ward
explains that he was convicted of child molesting in 1992. He
served his time and was not required to register as a sex
offender. However, he was arrested in 2005 for theft and when
he was released in 2007 he was informed that a new law
required him to register as an Indiana Sex and Violent
Offender. Mr. Ward registered in 2007, but was twice arrested
for failure to register. He was removed from the registry on
October 12, 2012, pursuant to a review by the Indiana
Department of Correction. Mr. Ward alleges that being forced
to register for five years and facing arrest twice for not
registering violated the ex post facto clause of the U.S.
Constitution. See Wallace v. State, 905 N.E.2d 371,
384 (Ind. 2009) (discussing Indiana Sex Offender Registry and
Ex Post Facto Clause).
Ward names Vigo County Sheriff's Department and Vigo
County as a defendant. These defendants can be held liable
for constitutional violations only when there is “an
official policy or other governmental custom that not only
causes but is the moving force behind the deprivation of
constitutional rights.” Wilson v. Cook County,
742 F.3d 775, 779 (7th Cir. 2014) (internal quotation
omitted). “[A] government agency may be liable when its
official policy or custom inflicts the plaintiff's
injury.” Id. (citing Monell v. Dep't
of Soc. Servs., 436 U.S. 658, 694 (1978)). “But a
municipality may not be held liable under § 1983 solely
because it employs a tortfeasor.” Id.
(internal quotation omitted). There are no allegations that a
county custom or policy caused harm to Mr. Ward. Therefore,
the claim against Vigo County and the Vigo County
Sheriff's Department is dismissed for failure to state a
claim upon which relief can be granted.
Ward names Patricia Bower as a defendant but there is no
allegations of wrongdoing alleged against her. It is unclear,
what if any, role she had in the misconduct alleged. Ms.
Bower is dismissed for failure to state a claim upon which
relief can be granted because the complaint lacks the factual
allegations necessary to suggest a plausible violation of any
federally secured right.
claims also appear to be barred by the statute of
limitations. The claims raised in this action are necessarily
brought pursuant to 42 U.S.C. § 1983. To state a claim
under § 1983, a plaintiff must allege the violation of a
right secured by the Constitution or laws of the United
States and must show that the alleged deprivation was
committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988). Suits under
§ 1983 use the statute of limitations and tolling rules
that states employ for personal-injury claims. In Indiana,
the applicable statute of limitations period is two years.
See Richards v. Mitcheff, 696 F.3d 635, 637 (7th
Cir. 2012); Ind. Code § 34-11-2-4. This action was filed
on September 13, 2016, almost two years after the expiration
of Indiana's 2-year statute of limitations, with Mr.
Wards claims having accrued by no later than October 12,
2012, when he was allegedly removed from the Indiana Sex and
Violent Offender Registry. Koch v. Gregory, 536
Fed.Appx. 659 (7th Cir. 2013) (stating that when the language
of the complaint plainly shows that the statute of
limitations bars the suit, dismissal under § 1915A is
appropriate); Brownmark Films, LLC v. Comedy
Partners, 682 F.3d 687, 690 (7th Cir. 2012).
plaintiff can plead himself out of court by alleging facts
that show there is no viable claim.” Pugh v.
Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008). For the
above reasons, the complaint fails to state a claim upon
which relief can be granted as a matter of law and is
therefore dismissed pursuant to 28 U.S.C. § 1915A.
plaintiff shall have through October 18, 2016, in which to
show cause why this action should not be dismissed for
failure to state a claim upon which relief can be granted.
Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014,
1022 (7th Cir. 2013) (plaintiffs should be given at least an
opportunity to amend or to respond to an order to show cause
before a case is “tossed out of court without giving
the applicant any timely notice or opportunity to be heard to
clarify, contest, or simply request leave to amend.”).
plaintiff fails to show cause or seek leave to amend, the
action will be dismissed for the reasons set forth in this
Entry without further notice.
addition, it is the plaintiffs obligation to report any
change of address within seven (7) days of the change.
Failure to report any change of address may result in ...