United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISMISSING ACTION AND DIRECTING ENTRY OF FINAL
Jane Magnus-Stinson, Judge
Dacia Nakema Ward's complaint was screened pursuant to 28
U.S.C. § 1915A on September 16, 2016. The Court's
review of the complaint determined that this action is barred
by the statute of limitations. Dkt. 4. Mr. Ward was given the
opportunity to show cause why this action should not be
dismissed or to file an amended complaint. Mr. Ward choose to
file an amended complaint.
motion to amend [dkt. 6] is granted as a
matter of right. The clerk is directed to
redocket the proposed amended complaint [dkt. 6-1] as the
amended complaint. The amended complaint is now subject to
screening pursuant to § 1915A.
Ward is an inmate at the Vigo County Jail. In this civil
rights action he names defendants Patricia Bower, Vigo County
Sheriff's Department, Vigo County and the Indiana
Department of Corrections. Mr. Ward explains that he was
convicted of child molesting in 1992. He served his time and
was released without any obligation to register as a sex
1994, the Indiana Legislature passed the Indiana Sex Offender
Registration Act (“Act”). Generally, the Act
requires “defendants convicted of sex and certain other
offenses to register with local law enforcement agencies and
to disclose detailed personal information, some of which is
not otherwise public.” Wallace v. State, 905
N.E.2d 371, 373 (Ind. 2009). In 2001, the Act was amended to
require all offenders convicted of certain sex offenses to
register as sex offenders regardless of conviction date. See
Indiana Code §§ 11-8-8-1 to 11-8-8-22 and
Wallace, 905 N.E.2d at p. 376-77 (discussing history
2005, Mr. Ward was arrested for theft and when he was
released in 2007, he was informed that the Act required him
to register as a sex offender. Mr. Ward, in compliance with
the Act, registered in 2007. He alleges that he was arrested
twice for failure to register (sometime between 2007 and
April 30, 2009, the Indiana Supreme Court held that the Act
violates the prohibition on ex post facto laws contained in
the Indiana Constitution because it imposes burdens that have
the effect of adding punishment beyond that which could have
been imposed when the crime was committed. Wallace,
905 N.E.2d at 384.
Ward 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.
the original complaint, the amended complaint appears 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. Ward's 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
amended complaint, Mr. Ward alleges that he has been living
under the misperception that he was required to register as a
sex offender through 2017. Mr. Ward alleges that the
defendants are liable because they required him register as a
sex offender. The record reflects, however, that Mr. Ward was
not required to register after October 12, 2012. There is no
allegation that anyone told him that he was required to
register after October 12, 2012. There is no allegation that
he did in fact register after October 12, 2012. He does not
allege that he was arrested for failing to register after
2012. In other words, there is no plausible basis to conclude
that any of the named defendants did anything to violate Mr.
Ward's constitutional rights within two years of the date
this lawsuit was filed.
there is no plausible basis to conclude that any defendant
had an improper motive in notifying Mr. Ward in 2007, that he
was required to register as a sex offender under Indiana law.
The case law discussed above demonstrates that that
information was true at the time. The Act was not deemed
unconstitutional under the Indiana Constitution until 2009.
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 ...