Kincaid v. Unknown Police Officers et al, No. 4:2009cv00086 - Document 3 (N.D. Ind. 2009)

Court Description: OPINION AND ORDER. Motions terminated: 2 MOTION for Leave to Proceed in forma pauperis accompanied by 3 copies of summons forms and filed by Darrell D Kincaid. Although the statute of limitations is an affirmative defense, dismissal is appropriate where the complaint makes clear that the claim is time barred. The court dismisses this case pursuant to 28 U.S.C. Sec. 1915(e)(2)(B)(ii). ***Civil Case Terminated. Signed by Judge Robert L Miller, Jr on 12/7/09. (csi)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION AT LAFAYETTE DARRELL D. KINCAID, Plaintiff v. UNKNOWN POLICE OFFICERS, and J&T RECOVERY, Defendants ) ) ) ) ) ) ) ) ) ) CAUSE NO. 4:09-CV-086 RM OPINION AND ORDER Darrell D. Kincaid, a pro se plaintiff, filed a § 1983 complaint and an in forma pauperis petition. A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations omitted). Nevertheless, Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). Mr. Kincaid alleges that J&T Recovery impounded his vehicle after the police illegally searched and seized his truck on July 20, 2006. The statute of limitations bars that claim. Indiana s two-year statute of limitations . . . is applicable to all causes of action brought in Indiana under 42U.S.C. § 1983. Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 894 (7thCir. 2001). This complaint wasn t filed until December 4, 2009, nearly a year and a half after the deadline expired on July 20, 2008. Although the statute of limitations is an affirmative defense, dismissal is appropriate where the complaint makes clear that the claim is time barred. Cancer Foundation, Inc. v. Cerberus Capital Management, LP, 559 F.3d 671, 674 (7th Cir. 2009). For the forgoing reasons, the court dismisses this case pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). SO ORDERED. ENTERED: December 7 , 2009 /s/ Robert L. Miller, Jr. Chief Judge United States District Court 2

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