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Muldrow v. United States

February 20, 2007


The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge


Before the Court is the pro se Plaintiff's Application to Proceed In Forma Pauperis. All of Plaintiff's claims appear to be untimely filed. If so, the action must be dismissed. Additionally, if any claims survive it appears likely that judicial economy will require that such claims be consolidated with an action previously filed by Plaintiff and pending before another federal court in this district. For both reasons, the Court postpones ruling on Plaintiff's in forma pauperis motion until these issues can be addressed.

I. Overview of Plaintiff's Complaint and First Amended Complaint

On January 16, 2007, Plaintiff Larry Muldrow filed a Complaint entitled "Federal Tort Claims Act Complaint." On January 29, 2007, he filed a First Amended Federal Tort Claims Act Complaint. It appears that Plaintiff is seeking relief pursuant to the Federal Tort Claims Act, 42 U.S.C. 1346(b). It further appears that Plaintiff may be seeking to raise a claim pursuant to 42 U.S.C. §§ 1981, 1983 as well as a supplemental state law claim under Arkansas state law for intentional infliction of emotional distress.

Plaintiff Muldrow is also the plaintiff in a previously filed action that appears related to this action and which remains open and is pending before The Honorable George Howard, Jr. See Muldrow v. Donald Rumsfeld, Secretary, Department of Defense, Case No. 4:04-cv-778 (E.D. Ark.)(hereinafter referred to as the "Termination Lawsuit"). In the Termination Lawsuit, Mr. Muldrow claims that Robert Pflager wrongfully discharged him from his position as a Loss Prevention Associate at the Arkansas Army and Air Force Exchange Service (AAFES), Little Rock Air Force Base Exchange, because of his disability and his race .

In the proposed First Amended Complaint before this Court, Mr. Muldrow mentions his termination in several places. In paragraph seventeen of the First Amended Complaint he alleges that Robert E. Pflager was not trained and supervised adequately to refrain from "Disproportionate Separation for Cause of African American employees, which Plaintiff was a member." (Doc. # 3, p. 4). He has even attached documents filed previously in the Termination Lawsuit. For example, Plaintiff has included in this action an Affidavit filed in connection with a summary judgment motion in the Termination Lawsuit. (See Doc. # 3, pp. 24-28). Plaintiff also claims damages in this action for "mental anguish, humiliation, and indignation due in part to the embarrassment of being Separated for Cause." (Doc. # 2 at p. 5).

It appears, although the Court can not be entirely sure, that Plaintiff's proposed First Amended Complaint may be based on events other than his termination. Plaintiff mentions that he was subjected to some sort of "racially discriminatory encounter" while on the grounds of the Little Rock Air Force Base. The Court is uncertain as to whether this encounter was part and parcel of his termination or whether it was a separate and independent incident.

Plaintiff has attached to his original Complain in this case a letter demonstrating that he presented or attempted to present an administrative claim under the Federal Tort Claim Act. The letter demonstrate that his administrative claim was limited to an event that occurred on June 22, 2000. (See Administrative Claim attached to Plaintiff's Complaint, Doc. # 2, at p. 8). This Court may not consider a claim under the Federal Tort Claims Act unless such claim was first presented to the appropriate federal agency. This requirement is a jurisdictional prerequisite and may not be waived. McNeil v. United States, 508 U.S. 106 (1993). Accordingly, Plaintiff's claims under the Federal Tort Claims Act are limited to the events that occurred on June 22, 2000.*fn1

II. Screening Requirement

District courts are required to carefully screen in forma pauperis complaints pursuant to 28 U.S.C. § 1915. More specifically, 28 U.S.C. § 1915(e)(2)(B) states that a court shall dismiss an action in which a party is proceeding in forma pauperis if the court determines that the action is frivolous, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Thus, the Court is required by statute to examine the claims Plaintiff proposes to file prior to granting him permission to proceed without the normally required civil filing fee.

III. Limitations Issue

It is a general principle of federal civil procedure that courts can raise affirmative defenses sua sponte if it '"is so plain from the face of the complaint that the suit can be regarded as frivolous; and the district judge need not wait for an answer before dismissing the suit."' World Church of Creator v. Te-Ta-Ma Truth Foundation-Family of URI, Inc., 239 F.Supp.2d 846, 847 (C.D.Ill. 2003)(citing Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002)). The Eighth Circuit has approved the sua sponte dismissal of a civil complaint as frivolous under § 1915 when it was apparent that the statute of limitations had run. See Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992)(per curiam).

Plaintiff asserts legal claims in this lawsuit related to events occurring in January 2000 and June 2000.*fn2 Plaintiff's claims under 42 U.S.C. § 1981, § 1983 and his Arkansas state law tort claim are all governed by a three year limitations periods. See Ark. Code Ann. § 16-56-105(3); Wycoff v. Menke, 773 F.2d 983, 984 (1985). Plaintiff's claim under the Federal Tort Claims Act ("FTCA") is governed by a two year limitations period. 28 U.S.C. § 2401(b).

Plaintiff filed the Termination Lawsuit on August 6, 2004, yet waited until January 16, 2007 to file this lawsuit. All of Plaintiff's claims in this action appear to be untimely filed. With regard to Plaintiff's proposed FTCA claim, it appears that Plaintiff's administrative claim was denied solely due to its untimeliness. The letter ...

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