Eikenberry v. Seward County, Kansas ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 14, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MICHAEL WAYNE EIKENBERRY,
Plaintiff - Appellant,
No. 17-3278
v. (D.C. No. 5:17-CV-03150-SAC)
(D. Kan.)
SEWARD COUNTY, KANSAS, a
municipal corporation; HUBERT C.
PETERSON, Seward County
Coroner, in his individual and
official capacity; FRED SMALLS,
Seward County Sheriff Deputy, in
his individual capacity; JIMMY
SELLARS, Seward County Sheriff
Deputy, in his individual capacity;
ROB GNAT, Seward County
Captain, in his individual capacity;
GENE WARD, Seward County
Undersheriff, in his individual and
official capacity; R. ROEHR,
Seward County Sheriff Deputy, in
his individual and official capacity;
RYAN MCVEY, Detective, Seward
County Sheriff’s Department, in his
individual capacity; JEFF
KEATING, Seward County Sheriff
Deputy (deceased); JASON LARUE,
Senior Special Agent, Kansas
Bureau of Investigation, in his
individual and official capacity;
CLINT HAWKINS, Senior Special
Agent, Kansas Bureau of
Investigation, in his individual and
official capacity; LYNN KOEHN,
Seward County Prosecutor, in his
individual and official capacity;
JOHN DOE,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
_________________________________
This appeal arises out of searches at Mr. Michael Eikenberry’s house
and his subsequent conviction for involuntary manslaughter. Following the
conviction, Mr. Eikenberry sued under 42 U.S.C. § 1983, 1 claiming
 illegality in the searches of his house,
 excessive force,
 an unauthorized strip search and taking of nude photographs,
 a conspiracy to frame him,
 concealment of exculpatory evidence, and
 creation of false evidence.
Mr. Eikenberry attributed these misdeeds to not only the officers
themselves but also
*
We conclude that oral argument would not materially aid our
consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R.
34.1(G). Thus, we have decided the appeal based on the record and Mr.
Eikenberry’s appeal brief.
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
1
Mr. Eikenberry also asserted state-law claims, but his appeal brief
did not address these claims.
2
 their supervisors (based on inadequate training and
supervision) and
 Seward County (based on policies governing the execution of
search warrants).
The district court summarily dismissed the complaint for failure to state a
valid claim, concluding that any potential theories of liability were either
premature or untimely.
Mr. Eikenberry challenges the dismissal, arguing on appeal that
 the action was neither premature nor untimely and
 the district court committed procedural error.
We reject these challenges and affirm the dismissal.
I. Standard of Review
In considering Mr. Eikenberry’s challenges, we engage in de novo
review. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). In conducting
this review, we “accept the facts alleged in the complaint as true and view
them in the light most favorable to the plaintiff.” Mayfield v. Bethards, 826
F.3d 1252, 1255 (10th Cir. 2016).
II. Prematurity: Claims for Creation of False Evidence, Concealment
of Exculpatory Evidence, and Conspiracy to Frame Mr.
Eikenberry
Mr. Eikenberry contends that the district court erred in characterizing
some of the claims as premature. We reject this contention for the claims
involving creation of false evidence, concealment of exculpatory evidence,
and conspiracy to frame Mr. Eikenberry.
3
In addressing prematurity, the district court applied Heck v.
Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that a
§ 1983 claim is not ordinarily cognizable if a favorable judgment would
necessarily imply the invalidity of the plaintiff’s conviction unless the
conviction had been invalidated elsewhere. 512 U.S. at 486-87 & n.6. Mr.
Eikenberry does not assert that his conviction has been invalidated.
Therefore, his § 1983 claims would be subject to dismissal if a judgment in
his favor would imply the invalidity of his conviction for involuntary
manslaughter. In our view, his conviction would necessarily be invalid if
Mr. Eikenberry were to prevail on his causes of action for the creation of
false evidence, concealment of exculpatory evidence, or conspiracy to
frame Mr. Eikenberry.
He observes that the claims would be premature only if they related
to the validity of his conviction. Based on this observation, he argues that
Heck does not apply because his conviction would not have been affected
by the evidence that was concealed or fabricated. According to Mr.
Eikenberry, the conviction was based solely on the fact that he and the
victim had been present at the same location. This argument fails as a
matter of law.
Mr. Eikenberry was convicted after a trial, and we cannot assume
that the verdict was unaffected by the evidence introduced at trial. If law-
enforcement officers had created false evidence, concealed exculpatory
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evidence, or conspired to frame Mr. Eikenberry, the conviction for
involuntary manslaughter would necessarily have been invalid. See Heck v.
Humphrey, 512 U.S. 477, 478-79, 486-90 (1994) (holding that claims
involving destruction of exculpatory evidence were premature because they
implied the invalidity of a conviction for voluntary manslaughter); see also
Okoro v. Callaghan, 324 F.3d 488, 489-90 (7th Cir. 2003) (applying Heck
to a claim that the plaintiff had been framed). Therefore, a judgment for
Mr. Eikenberry on these claims would necessarily imply that his conviction
was invalid. Under Heck, this implication required the district court to
dismiss the claims for creating false evidence, concealing exculpatory
evidence, and conspiring to frame Mr. Eikenberry. The court did not err in
dismissing these claims.
III. Timeliness: Claims for Excessive Force and Illegality in
Conducting the House Searches, the Strip Search, and the
Photography of Mr. Eikenberry’s Nude Body
The district court also acted correctly in dismissing the claims for
excessive force, illegality of the house searches, 2 illegality of the strip
search, and taking of nude photographs. In dismissing these claims, the
court relied on the statute of limitations. Mr. Eikenberry presents two
arguments:
1. The district court applied the wrong statute of limitations.
2
It is unclear whether Mr. Eikenberry also meant to challenge the
searches based on the introduction of evidence at his criminal trial. Any
such challenge would have been premature under Heck. See Part II, above.
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2. The claims accrued less than two years before initiation of the
suit.
We reject both arguments.
A. The Applicable Statute of Limitations
First, Mr. Eikenberry argues that the district court applied the wrong
statute of limitations. We disagree.
In a claim under § 1983, we apply the period of limitations from the
state’s personal-injury statute. Mondragón v. Thompson, 519 F.3d 1078,
1082 (10th Cir. 2008). Kansas has a two-year period of limitations for
personal-injury claims. Kan. Stat. Ann. § 60-513(a)(4). Thus, the two-year
limitations period governed. See Johnson v. Johnson Cty. Comm’n Bd., 925
F.2d 1299, 1301 (10th Cir. 1991) (“[T]he appropriate statute of limitations
for § 1983 actions arising in Kansas is two years, under Kan. Stat. Ann.
§ 60-513(a)(4).”).
Mr. Eikenberry disagrees, urging application of Kansas’s ten-year
statute of repose. The ten-year period is based on a Kansas law stating that
a claim ordinarily accrues when
 the act giving rise to the claim first causes substantial injury or
 the fact of injury becomes reasonably ascertainable to the
injured party.
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Kan. Stat. Ann. § 60-513(b). But the law sets an outer cap of ten years
from the date of the underlying act. Id. Mr. Eikenberry insists that this law
creates a ten-year period of limitations for his claims. We disagree.
The outer cap of ten years applies only when the fact of an injury is
not reasonably ascertainable until after a substantial injury has been
inflicted. Kinell v. N.W. Dible Co., 731 P.2d 245, 248 (Kan. 1987). When
triggered, the outer cap of ten years serves to limit—not extend—the time
period for the plaintiff to sue. Gilger v. Lee Constr., Inc., 820 P.2d 390,
397 (Kan. 1991). Thus, Kansas’s ten-year statute of repose does not extend
the two-year limitations period for Mr. Eikenberry to sue.
B. The Accrual Date
The alleged conduct (excessive force, house searches, strip search,
and taking of nude photographs) took place in 2013, and Mr. Eikenberry
did not sue until August 2017. But he argues that his claims did not accrue
until either June 2016 or May-June 2017, when he obtained certain
affidavits from some of the police officers, allegedly alerting him to the
defendants’ fraud and the full extent of his injuries.
Determining the accrual date for a § 1983 claim is a question of
federal law. Mondragón v. Thompson, 519 F.3d 1078, 1082 (10th Cir.
2008). The claim accrues when the plaintiff knows, or should know, that
his or her rights have been violated. Kripp v. Luton, 466 F.3d 1171, 1175
(10th Cir. 2006). And “‘[c]laims arising out of police actions toward a
7
criminal suspect, such as arrest, interrogation, or search and seizure, are
presumed to have accrued when the actions actually occur.’” Beck v. City
of Muskogee Police Dep’t, 195 F.3d 553, 558 (10th Cir. 1999) (quoting
Johnson v. Johnson Cty. Comm’n Bd., 925 F.2d 1299, 1301 (10th Cir.
1991)). Thus, Mr. Eikenberry’s claims (excessive force, illegal house
searches, improper strip search, and taking of nude photographs)
presumptively accrued when the actions took place, which was more than
two years before Mr. Eikenberry sued.
But Mr. Eikenberry insists that his claims did not accrue until he
obtained the affidavits. These affidavits recounted the details of the
searches, but Mr. Eikenberry does not explain the relevance of the
affidavits. To the extent that Mr. Eikenberry is arguing that the affidavits
support his underlying claims, the argument would fail because he does not
explain why he could not have known of his injuries until years after the
searches, why he could not have obtained the affidavits earlier, or even
how the affidavits provided him with any new information. 3 Therefore, the
district court correctly concluded that Mr. Eikenberry has not justified
postponement of the accrual date for the claims of excessive force, illegal
house searches, improper strip search, and taking of nude photographs.
3
To the extent that he is instead asserting that the affidavits support
his claims involving the creation of false evidence, concealment of
exculpatory evidence, or conspiracy to frame Mr. Eikenberry, these
assertions would be premature. See Part II, above. Therefore, accrual under
the statute of limitations is irrelevant to these claims.
8
Because Mr. Eikenberry filed the complaint more than two years after the
alleged wrongdoing, these claims were untimely.
IV. Procedural Requirements
Finally, Mr. Eikenberry urges two procedural errors in district court.
The first alleged procedural error is that the district court should
have notified Mr. Eikenberry of the deficiencies in his complaint and
allowed him to amend. The court notified Mr. Eikenberry of the
deficiencies in an order to show cause, but the court did not sua sponte tell
him that he could amend his complaint. Even if this omission had
constituted error, the error would have been harmless in light of the futility
of amendment. See Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th
Cir. 1999) (stating that dismissal of a pro se complaint for failure to state a
claim is proper if “it is obvious that the plaintiff cannot prevail on the
facts he has alleged and it would be futile to give him an opportunity to
amend”). 4
As discussed, the complaint lacked factual allegations that would
overcome the hurdles of prematurity and timeliness. Mr. Eikenberry has
not offered any additional information—either in the district court or on
appeal—that would cure these defects. Nor can we conceive of any. Indeed,
4
The district court did not address whether amendment would have
been futile. But we may affirm the district court’s ruling on any ground
supported by the record. Stillman v. Teachers Ins. & Annuity Ass’n Coll.
Ret. Equities Fund, 343 F.3d 1311, 1321 (10th Cir. 2003).
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even now Mr. Eikenberry does not say how he would amend the complaint
to cure the pleading defects. See Switzer v. Coan, 261 F.3d 985, 989-90
(10th Cir. 2001). It would therefore be futile to give Mr. Eikenberry an
opportunity to amend the complaint, and any error in the district court’s
failure to sua sponte provide such an opportunity would have been
harmless.
Mr. Eikenberry also argues that the district court needed to request a
response from the defendants before dismissing the complaint. But the
district court had a statutory obligation to screen the complaint for failure
to state a valid claim. See 28 U.S.C. §§ 1915(e)(2) (stating that the district
court must dismiss a case brought in forma pauperis “at any time” if the
action fails to state a valid claim), 1915A(a)-(b)(1) (setting forth a similar
requirement in prisoner suits against a governmental entity or employee).
In light of this statutory obligation, we reject Mr. Eikenberry’s second
argument.
* * *
We draw four conclusions:
1. The district court did not err in dismissing the claims for
creation of false evidence, concealment of exculpatory
evidence, and conspiracy to frame Mr. Eikenberry. These
claims were premature.
2. The district court did not err in dismissing the claims for
excessive force, illegal house searches, unauthorized strip
search, and taking of nude photographs. These claims were
untimely.
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3. The district court did not commit reversible error by failing to
sua sponte offer an opportunity to amend the complaint.
4. The district court did not err in dismissing the complaint
without requesting a response from the defendants.
Accordingly, we affirm.
V. Motions for a Certificate of Appealability and to Proceed In
Forma Pauperis
Mr. Eikenberry made two additional sets of motions.
First, he filed two motions for a certificate of appealability. But a
certificate of appealability is not required for an action brought under
§ 1983; therefore, we deny these motions as moot. Reyes v. New Mexico,
415 F. App’x 856, 857 (10th Cir. 2011) (unpublished).
Second, Mr. Eikenberry filed a motion for leave to proceed in forma
pauperis. We grant Mr. Eikenberry’s motion. But we remind Mr.
Eikenberry of his obligation to continue making partial payments until the
entire filing fee has been paid in full.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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