The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
MICHAEL KEITH COLLIER PLAINTIFF
v. Civil No. 4:21-cv-04063
OFFICER DUSTIN WAKEFIELD, Mineral Springs
Police Department; and JOHN DOE OFFICER,
Mineral Springs Police Department DEFENDANTS
ORDER
This is a civil rights action filed pro se by Plaintiff, Michael Keith Collier under 42 U.S.C.
§ 1983. On January 6, 2022, the parties consented to have the undersigned conduct all proceedings
in this case including a jury or nonjury trial and to order the entry of a final judgment in accordance
with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (ECF No. 16). Before the Court is a Motion to
Dismiss filed by Defendant Dustin Wakefield. (ECF No. 8). Plaintiff has filed a Response in
opposition to the motion. (ECF No. 12).
I. BACKGROUND
Plaintiff filed his Complaint in this lawsuit on September 28, 2021. (ECF No. 1). His
application to proceed in forma pauperis was granted that same day. (ECF No. 3). Plaintiff names
Dustin Wakefield and John Doe – officers with the Mineral Springs Police Department – as
Defendants. (ECF No. 1, pp. 4-5). He is suing Defendants in both their individual and official
capacities and is seeking compensatory and punitive damages. Id. at p. 9.
In the Complaint Plaintiff alleges Defendants used excessive force against him “on or
around May 13th 2018”. (ECF No. 1, p. 4). On November 30, 2021, Defendant Wakefield filed a
Motion to Dismiss arguing Plaintiff’s Complaint was filed more than three years after the May
2018 alleged excessive force incident and therefore his claims should be dismissed as being time-
barred in accordance with the statute of limitations. Id.
Plaintiff filed a Response in opposition to the motion on December 15, 2021. (ECF No.
12). He admits he was not “timely in filing his Complaint” but argues in part, “…the physological
effects of the ‘excessive force’ was not apparent at the time of the incident and therefore should
not be time barred by statute of limitations but instead be allowed to be seen in its entirety.” Id.
II. APPLICABLE LAW
Rule 8(a) contains the general pleading rules and requires a complaint to present “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), ‘a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.’” Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft, 556 U.S. at 678. While the Court will liberally construe a pro se plaintiff’s complaint,
the plaintiff must allege sufficient facts to support his claims. See Stone v. Harry, 364 F.3d 912,
914 (8th Cir. 2004).
III. DISCUSSION
Section 1983 claims are governed by the personal injury statute of limitations of the state
where the claim arose and, in Arkansas, that is three years. Ark. Code Ann. § 16-56-105 (2005);
Miller v. Norris, 247 F.3d 736, 739 (8th Cir. 2001). Any possible equitable tolling is also controlled
by state law unless that law is inconsistent with the policies behind § 1983. Board of Regents of
University of State of N.Y. v. Tomanio, 446 U.S. 478 (1980); Hughes v. Sheriff of Fall River County
Jail, 814 F.2d 532 (8th Cir. 1987).
The accrual date of a § 1983 cause of action is controlled by federal law. Wallace v. Kato,
549 U.S. 384 (2007). Accrual generally occurs when the Plaintiff has “a complete and present
cause of action.” Id. at 388. This is met when “the Plaintiff can file suit and obtain relief.” Id. A
statute of limitations defense is not ordinarily grounds for a Rule 12(b)(6) dismissal except when
the complaint itself establishes the defense. Joyce v. Armstrong Teasdale, LLP, 635 F.3d 364 (8th
Cir. 2011).
According to Plaintiff’s Complaint, Defendants used excessive force against him “on or
around May 13, 2018”. Therefore, May 13, 2018, was the date his claim accrued and the deadline
to file a lawsuit relating to the incident would have been May 13, 2021. Plaintiff’s Complaint was
not filed until September 28, 2021 – almost four months after the statute of limitations had run.
The fact Plaintiff may not have been aware of the psychological effects from the incident until
later does not excuse his failure to timely file his Complaint.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss (ECF No. 8) is GRANTED,
Plaintiff’s Complaint (ECF No. 1) is dismissed, and the claims for excessive force against all
Defendants are dismissed WITH PREJUDICE. A Judgement of even date will be entered.
Further, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from this
action would not be taken in good faith. In addition, the dismissal of this action should constitute
a “strike” under 28 U.S.C. § 1915(g), and the Clerk be directed to place a § 1915(g) strike flag on
the case.
IT IS SO ORDERED this 11th day of January 2022.
Barry A. Bryant
/s/
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE