United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING MOTION TO PROCEED IN FORMA PAUPERIS,
DISMISSING COMPLAINT, AND DIRECTING FURTHER
WALTON PRATT, JUDGE United States District Court
Gregory Konrath filed this action on November 15, 2016
against Defendant Gregory Pemperton, alleging violations of
his rights under 42 U.S.C. § 1983 and 1985. Before the
Court are Konrath's Motion for Leave to Proceed in
forma pauperis [Dkt. 2], Motion to Compel Production of
Record [Dkt. 3], and Motion to Screen Claim [Dkt. 4]. The
Court will address each motion.
motion to proceed in forma pauperis [Dkt 2] is
granted. He shall have through December 30, 2016, to pay an
initial partial filing fee of $15.00.
brings this complaint pursuant to 42 U.S.C. §§ 1983
and 1985. His motion to screen claim [Dkt. 4] is
granted because the complaint is subject to
the screening requirement of 28 U.S.C. § 1915(e)(2)(B).
This statute provides that a court shall dismiss a case at
any time if the court determines that the action (i) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.
alleges that he sought legal advice from the Pemperton, who
is a lawyer, in 2010 regarding his rights under the Family
Medical Leave Act and the Americans with Disabilities Act.
Rather than assist him in pursuing these rights, Pemperton
conspired with others to ensure that Konrath was terminated
from his employment. Based on the required screening, the
complaint must be dismissed.
any claim brought pursuant to 42 U.S.C. § 1983 is
dismissed for failure to state a claim. To state a claim
under 42 U.S.C. § 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). “The
color of state law element is a threshold issue; there is no
liability under [Section] 1983 for those not acting under
color of law.” Groman v. Twp. of Manalapan, 47
F.3d 628, 638 (3d Cir. 1995). A person acts under color of
state law only when exercising power “possessed by
virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.”
United States v. Classic, 313 U.S. 299, 326 (1941).
Because there is no allegation that the defendant in this
case, a private attorney, acted under color of state law, the
plaintiff has failed to state a claim under § 1983.
any claim under 42 U.S.C. § 1985(3) must also be
dismissed. To establish liability for conspiracy under 42
U.S.C. § 1985, a plaintiff must establish: 1) a
conspiracy; 2) that the purpose of the conspiracy was to
deprive a person of equal protection of the laws, or to
deprive a person of his privileges and immunities under the
laws; 3) that an act was committed in furtherance of the
conspiracy; and 4) that an injury occurred as a result.
See Griffin v. Breckenridge, 403 U.S. 88, 102-04
(1971). While Konrath correctly asserts that claims under
§ 1985 are not limited to race-based discrimination, a
plaintiff “must allege that the acts complained of were
the product of racial or class-based animus.”
Komasinski v. I.R.S., 588 F.Supp 974, 977 (N.D. Ind.
1984) (citing Dunn v. State of Tennessee, 697 F.2d
121 (6th Cir. 1982)). “A complaint that does not
contain such allegations will be dismissed . . . under Rule
12(b)(6) . . . .” Id. Here, there is no
allegation that the alleged animus against Konrath was based
on his membership in a particular protected class.
the complaint did state a viable claim under § 1983 or
§ 1985, those claims would be barred by the applicable
statute of limitations. The statute of limitation for
constitutional torts such as those alleged is two years.
See Myles v. United States, 416 F.3d 551 (7th Cir.
2005); Hoaglan v. Town of Clear Lake, Ind., 415 F.3d
693-699-700 (7th Cir. 2005). Konrath alleges that the acts at
issue took place six years ago, in 2010. “It is, of
course, ‘irregular' to dismiss a claim as untimely
under Rule 12(b)(6). . . . However, . . . dismissal under
Rule 12(b)(6) on the basis of a limitations defense may be
appropriate when the plaintiff effectively pleads [himself]
out of court by alleging facts that are sufficient to
establish the defense.” Hollander v. Brown,
457 F.3d 688, 691 n.1 (7th Cir. 2006) (internal citations
omitted); see also Koch v. Gregory, ___Fed. Appx.
___, 2013 WL 5779636 (7th Cir. Oct. 28, 2013) (stating that
when the language of the complaint plainly shows that the
statute of limitations bars the suit, dismissal under §
1915A is appropriate).
light of the dismissal of the instant complaint,
Konrath's motion to compel production [Dkt. 3] is
denied as moot.
foregoing reasons, the complaint is dismissed. Konrath shall
have through December 30, 2016, to show cause why judgment
consistent with this Entry should not issue.
motion for to proceed in forma pauperis [Dkt. 2] is
granted. The motion to screen claim [Dkt. 4] is granted
consistent with the foregoing. The motion to compel
production of the record [Dkt. 3] is denied. The addendum to
the motion for summary judgment [Dkt. 5] is captioned for