The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
THELMA PAYNE, )
)
Plaintiff, )
)
vs. ) No. 1:19-cv-02859-JMS-MJD
)
JAMES E. CAMPBELL, )
SAM ALEXANDER, )
J. HARMON, and )
SPEEDWAY POLICE DEPARTMENT )
)
Defendants. )
ORDER
Plaintiff Thelma Payne filed her Complaint on July 11, 2019, alleging that Defendants
violated her Constitutional rights. [Filing No. 1.] On September 30, 2019, Defendants filed a
Motion to Dismiss, [Filing No. 11], which was referred to the Magistrate Judge, [Filing No. 18].
On January 14, 2020, the Magistrate Judge issued a Report and Recommendation pursuant to
Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1), in which he recommended that
the Court grant Defendants' Motion to Dismiss and that Ms. Payne's claims be dismissed with
prejudice, [Filing No. 22]. Ms. Payne filed an Objection to Magistrate's Report and
Recommendation on January 24, 2020, [Filing No. 23], which is now ripe for the Court's decision.
I.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 72(b), the Court may assign dispositive motions to
a magistrate judge, and the magistrate may submit to the district judge a report and recommended
disposition, including any proposed findings of fact. Fed. R. Civ. P. 72(b)(1). "The magistrate
judge's recommendation on a dispositive matter is not a final order, and the district judge makes
the ultimate decision to adopt, reject, or modify it." Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d
752, 760 (7th Cir. 2009). After a magistrate judge makes a report and recommendation, either
party may object within fourteen days. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1). The
district judge then "shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see
also Fed. R. Civ. P. 72(b)(3). Further, a district judge "may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1);
see also Fed. R. Civ. P. 72(b)(3).
Under Rule 12(b)(6), a party may move to dismiss a claim that does not state a right to
relief. The Federal Rules of Civil Procedure require that a complaint provide the defendant with
"fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551
U.S. 89, 93 (2007) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). In reviewing
the sufficiency of a complaint, the Court must accept all well-pled facts as true and draw all
permissible inferences in favor of the plaintiff. See Active Disposal Inc. v. City of Darien, 635
F.3d 883, 886 (7th Cir. 2011). A Rule 12(b)(6) motion to dismiss asks whether the complaint
"contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). But
the complaint "need not identify legal theories, and specifying an incorrect legal theory is not a
fatal error." Rabe v. United Air Lines, Inc., 636 F.3d 866, 872 (7th Cir. 2011). The Court will not
accept legal conclusions or conclusory allegations as sufficient to state a claim for relief. See
McCauley v. City of Chi., 671 F.3d 611, 617 (7th Cir. 2011). Factual allegations must plausibly
state an entitlement to relief "to a degree that rises above the speculative level." Munson v. Gaetz,
673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is "a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense." Id.
II.
BACKGROUND
A. The Complaint
The facts, taken from the Complaint, are set forth in the Magistrate Judge's Report and
Recommendation, and are accepted as true. Neither party objected to the Magistrate Judge's
statement of facts, and the Court adopts those facts and summarizes them below.
On February 9, 2017, Ms. Payne was involved in a traffic collision with Derame Searcey.
[Filing No. 1 at 3.] Officer J. Harmon of the Speedway Police Department ("SPD") completed an
"Indiana Officers Standard Crash Report" (the "Crash Report") that included information provided
by both drivers concerning the collision. [Filing No. 1-4 at 1.] Officer Harmon concluded that the
cause of the collision was Ms. Payne's failure to yield. [Filing No. 1-4 at 1.] Officer Harmon
erroneously documented in the Crash Report that Mr. Searcey was insured by American Family
Insurance when, in fact, Mr. Searcey's license was suspended and he was uninsured. [Filing No.
1 at 3 (citing Filing No. 1-4).]
On May 1, 2017, Ms. Payne received Mr. Searcey's "Indiana Official Driver Record" (the
"Driving Record"), from the Indiana Bureau of Motor Vehicles (the "BMV"), [Filing No. 1-2 at
1], which indicated that Mr. Searcey was uninsured and that his driver's license had been suspended
on May 22, 2016 through May 21, 2017. [Filing No. 1-2 at 1.] On July 17, 2017, Ms. Payne sent
a letter to the SPD stating that the Crash Report was recorded but "did not include the facts that it
should have!" and demanding that the Crash Report be corrected [Filing No. 1-3 at 1; Filing No.
1 at 4.]
On July 11, 2019, Ms. Payne filed her Complaint in which she alleges that Defendants,1
acting under the color of state law, violated her Constitutional rights and wrongfully discriminated
against her based on her age.2 She alleges that "through due diligence, the Constitutional
violation[] by Defendants[] was not discovered until May 1, 2017." [Filing No. 1 at 2.] However,
she alleges that "the two (2) year statute of limitations beg[an] to run from July 17, 2017, when
Plaintiff found that Defendants would take no corrective action to resolve the matter." [Filing No.
1 at 2.]
B. Defendants' Motion to Dismiss
In their Motion to Dismiss, Defendants argue that Ms. Payne's Complaint was not filed
within the two-year statute of limitations. [Filing No. 12 at 6.] They argue that a section 1983
cause of action accrues when the plaintiff knows or has reason to know of the injury that forms the
basis of the claim. [Filing No. 12 at 6 (citing Regains v. City of Chicago, 918 F.3d 529, 533 (7th
Cir. 2019)).] Defendants contend that Ms. Payne's Complaint establishes that she learned of the
alleged constitutional violation no later than May 1, 2017, but she did not file her Complaint until
July 11, 2019. [Filing No. 12 at 7 (citing Filing No. 1).] Therefore, they argue, Ms. Payne has
pleaded herself out of Court and her Complaint should be dismissed. [Filing No. 12 at 7.]
1 James. E. Campbell is the Chief of the Speedway Police Department and Sam Alexander is a
Lieutenant with the Speedway Police Department. [Filing No. 1 at 5.]
2 As noted in the Magistrate Judge's Report and Recommendation, Ms. Payne attempts to assert
her claim for age discrimination under Title VII of the Civil Rights Act of 1964. [Filing No. 1.]
However, Title VII does not protect against age discrimination, and regardless, does not apply in
this case because it applies only in the employment context. In her Response to Defendants'
Motion to Dismiss, Ms. Payne states that the age discrimination claim is an equal protection claim.
[Filing No. 15 at 9.] That claim is therefore brought pursuant to 42 U.S.C. § 1983.
Ms. Payne responds that she was required to exhaust her administrative remedies before
seeking judicial review. [Filing No. 15 at 7.] She asserts that she "filed grievances in the form of
a letter to Chief Campbell on July 17, 201[7] and a subsequent Internal Affairs complaint." [Filing
No. 15 at 7.] She asserts that the statute of limitations began when the Chief Campbell failed to
respond to that letter, and therefore the Complaint was timely. [Filing No. 15 at 8.]
Defendants reply by reiterating many of their arguments. Additionally, they argue that
there were no administrative remedies for her to exhaust, and that even if there were, those
administrative remedies would not toll the statute of limitations. [Filing No. 17 at 4.] They also
argue that the Due Process Clause does not entitle Ms. Payne to an accurate crash report and that
Defendants are entitled to qualified immunity. [Filing No. 17 at 6-10.]
C. The Magistrate Judge's Report and Recommendation
In his Report and Recommendation, the Magistrate Judge found that Ms. Payne's "section
1983 claims are time-barred because they were filed outside of the two-year statute of
limitations."3 [Filing No. 22 at 5.] He found that Ms. Payne knew or should have known that she
suffered the injury about which she complains on or before May 1, 2017, the date she received Mr.
Searcey's BMV records. [Filing No. 22 at 7 (citing Filing No. 1 at 2; Filing No. 15 at 6).] The
Magistrate Judge stated "[t]he facts establish that the alleged constitutional claims by Plaintiff
should have been apparent to her at least some time in February 2017, after she received the Crash
Report, and that by May 1, 2017, Plaintiff had clear notice regarding her constitutional injuries."
[Filing No. 22 at 7 (internal footnote omitted).] Therefore, the Magistrate Judge concluded, Ms.
3 The Magistrate Judge noted that both parties agree that the applicable statute of limitations in
this case is the two-year statute of limitations for personal injury claims in Indiana. [Filing No. 22
at 6 n.6.]
Payne failed "to commence this action within the two-year statute of limitations period" and
dismissal is appropriate.
III.
DISCUSSION
In her Objection to the Magistrate's Report and Recommendation, Ms. Payne argues that
"[t]hrough due diligence it was not discovered until May 17, 2017 when proof from the [BMV]
was furnished [to] Plaintiff that Dermain (sic) Searcey had no vehicle insurance or license to drive.
. . . Once found out[,] Plaintiff immediately brought her grievances to Chief Campbell and
thereafter Internal Affairs in accordance with Indiana law governing exhaustion of administrative
remedies. Both were completely ignored." [Filing No. 23 at 1-2.] Ms. Payne argues that the
doctrine of exhaustion of administrative remedies required her to challenge an agency decision by
first pursuing the agency's administrative remedies before seeking judicial review. [Filing No. 23
at 2.] She argues that to the extent she incorrectly cited a statute applicable only to state agencies
rather than municipalities, she is proceeding pro se and therefore the Court must liberally construe
her submissions to the Court. [Filing No. 23 at 2.]
Defendants respond that the Magistrate Judge properly rejected Ms. Payne's argument that
her claim did not accrue until she exhausted administrative remedies. [Filing No. 24 at 2.] They
argue that there were no administrative remedies to exhaust, and that even if there were, the
existence of those administrative remedies would not toll the statute of limitations. [Filing No. 24
at 4.]
Ms. Payne replies that "in this case[,] there should be no time limit for the truth, especially
to clear up a false representation by law enforcement on an official report that allowed fraud."
[Filing No. 25 at 1.] She argues that most police departments have grievance procedures for
citizens to file claims and Defendants' claim that they do not have a grievance procedure is "a
ridiculous concept." [Filing No. 25 at 1.]
Generally, "a statute of limitations defense is not normally a part of a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6)," Logan v. Wilkins, 644 F.3d 577, 582 (7th Cir.
2011), but such a defense "is appropriate where 'the allegations of the complaint itself set forth
everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals
that an action is untimely under the governing statute of limitations,'" Andonissamy v. Hewlett-
Packard Co., 547 F.3d 841, 847 (7th Cir. 2008) (quoting United States v. Lewis, 411 F.3d 838,
842 (7th Cir. 2005)).
Statutes of limitations are designed to "promote justice by preventing surprises through the
revival of claims that have been allowed to slumber until evidence has been lost, memories have
faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust
not to put the adversary on notice to defend within the period of limitation and that the right to be
free of stale claims in time comes to prevail over the right to prosecute them." Stephan v.
Goldinger, 325 F.3d 874, 876 (7th Cir. 2003) (quoting Order of Ry. Telegraphers v. Ry. Express
Agency, Inc., 321 U.S. 342, 348-49 (1944)). The Magistrate Judge noted that the parties agree that
the applicable statute of limitations was two years and that it required Ms. Payne to file her claim
no later May 1, 2019. [Filing No. 22 at 6.] However, Ms. Payne filed her Complaint on July 11,
2019. [Filing No. 22 at 3 (citing Filing No. 1).] Ms. Payne's sole objection to the Magistrate
Judge's Report and Recommendation is that he failed to account for her obligation to exhaust
administrative remedies. However, Ms. Payne has not pointed the Court to any administrative
remedy that she was legally required to have exhausted, nor is there any such administrative
remedy. [See Filing No. 23.] The Court recognizes that Ms. Payne is proceeding pro se, but
construing her submissions liberally* does not enable the Court to ignore the statute of limitations.
Therefore, the Court finds that Ms. Payne's claims under section 1983 are untimely and must be
dismissed. Accordingly, Ms. Payne's Objection is OVERRULED.
IV.
CONCLUSION
For the foregoing reasons, the Court OVERRULES Ms. Payne's Objection,[23], adopts
Magistrate Judge Dinsmore's Report and Recommendation, [22], GRANTS Defendants Motion
to Dismiss, [11], and DISMISSES WITH PREJUDICE Ms. Payne's Complaint. Final
Judgement shall issue accordingly.
Date: 5/15/2020
Hon. Jane Magnus-Stinson, Chief Judge
‘United States District Court
Southern District of Indiana
Distribution via U.S. Mail to:
Thelma Payne
1841 N. Goodlet Ave.
Indianapolis, IN 46222
* As Defendants point out, the Magistrate Judge construed Ms. Payne's Complaint liberally, as
evidenced by the discussion of her age discrimination claim. [See Filing No. 22 at 4n.4.]
Rosemary L. Borek
STEPHENSON MOROW & SEMLER
rborek@stephlaw.com
James S. Stephenson
STEPHENSON MOROW & SEMLER
jstephenson@stephlaw.com