Opinion
Case No. 02-4163-JAR
December 16, 2002.
MEMORANDUM AND SUA SPONTE ORDER OF DISMISSAL
Plaintiff Gene P. Gilbert filed this action, pro se, against the State of Kansas on October 21, 2002. In the Complaint, Plaintiff states:
1) Plaintiff claims in the 2nd quarter of 1987, "actions" were taken against plaintiff, that deprived him of U.S. Constitutional rights.
2) Plaintiff claims there are no laws, or beliefs, that support the "actions" taken against plaintiff.
3) Plaintiff seeks relief, through a trial, see XI, amendment.
4) Plaintiff believes, this court, has never seen, previously mentioned "action."
5) Plaintiff seeks an explanation as well as relief for enforced abandonement [sic] of U.S. Constitional [sic] Rights.
6) Plaintiff seeks maximum punitive damages + 5% per year, from time of 5-87 thru `02 for each constitutional violation.
The court concludes that the case must be dismissed pursuant to 28 U.S.C. § 1915(e)(2), which provides that an action filed without prepayment of fees shall be dismissed: at any time if the court determines that —
. . . .
(B) the action or appeal —
(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.
Because Plaintiff appears pro se, the Court must remain mindful of additional considerations. A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than pleadings drafted by lawyers. Thus, if a pro se plaintiff's complaint can reasonably be read "to state a valid claim on which the plaintiff could prevail, it [the court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." However, it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." For that reason, the court should not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues," nor should it "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf."
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Id.
Id.
Drake v. City of Fort. Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
The Court finds that Plaintiff's complaint should be dismissed pursuant to 28 U.S.C. § 1915(e). First, Plaintiff's complaint appears on its face to be time-barred. Plaintiff alleges that certain "actions" occurred in 1987, over fifteen years ago. Complaints have been dismissed under § 1915(e) as either frivolous or for failure to state a claim, where it is clear from the face of the complaint that the action is time-barred.
See White v. Rockafellow, 181 F.3d 106, 1999 WL 283905 (6th Cir. 1999) (affirming district court's dismissal under § 1915(e)(2) for failure to state a claim where claims were time-barred and not supported by sufficient facts to demonstrate constitutional violations); Smith v. New York City Transit Auth., 201 F.3d 432, 1999 WL 1212562 (2nd Cir. 1999) (holding that a complaint is frivolous if it lacks an arguable basis in law or fact, and a complaint may be dismissed as frivolous prior to service where it is clear from the face of the complaint that the claim is time-barred). See also, Block v. North Dakota, 461 U.S. 273, 103 S.Ct. 1811 (1983) (stating that a constitutional claim can become time-barred just as any other claim can . . . nothing in the constitution requires otherwise).
Plaintiff's complaint must also be dismissed because it seeks monetary relief from the State of Kansas, which is immune from such relief under the Eleventh Amendment to the United States Constitution. The Eleventh Amendment bars suits against the State of Kansas or its agencies or officers in federal court. While this immunity can be waived, the State of Kansas has not done so in this case, nor has this immunity been abrogated for any cause of action that Plaintiff has alleged.
The 11th Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54-55 (1996); Klein v. University of Kansas Medical Center, 975 F. Supp. 1408, 1415 (D.Kan. 1997); Adams v. State of Kansas, 934 F. Supp. 371, 372 (D.Kan. 1996), aff'd, 116 F.3d 489 (10th Cir. 1997).
See, e.g., Baker v. Board of Regents of the State of Kansas, 721 F. Supp. 270, 274 (D.Kan. 1989) (lawsuits under 42 U.S.C. § 1981 and 1983 are not exempt from the Eleventh Amendment bar); Powers v. CSX Transp., Inc., 105 F. Supp.2d 1295, 1303 (S.D.Ala. 2000) ( 42 U.S.C. § 1982 does not abrogate the states' Eleventh Amendment immunity).
IT IS THEREFORE ORDERED BY THE COURT that this action be DISMISSED.
IT IS SO ORDERED.