Banks v. Carroll

2015 DNH 183

• Court: District Court, D. New Hampshire
• Decided: September 22, 2015
• Docket: 15-cv-07-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Keelin Banks, et al. Case No. 15-cv-07-PB v. Opinion No. 2015 DNH 183

Shaun Carroll, Jr., et al.

O R D E R

Keelin and Daniel Banks filed their complaint in this case

on January 8, 2015. Plaintiffs assert state and federal

constitutional claims against the Sunapee School District and

two school officials that are based on conduct that allegedly

occurred during the 2008-09 school year. All of the claims

arise from defendants’ efforts to have Keelin Banks suspended

from school.

Defendants argue in a motion to dismiss that plaintiffs’

claims are barred by the applicable three-year statute of

limitations. See generally, King v. Town of Hanover, 139 N.H.

752, 754 (1995); Gorelik v. Costin, 605 F.3d 118, 121-22 (1st

Cir. 2010). Plaintiffs do not question defendants’ contention

that their claims are subject to a three-year statute of

limitations. Nevertheless, they argue that the claims are

timely because they did not accrue until January 9, 2012, when plaintiffs completed their effort to administratively challenge

Keelin’s suspension.

I am unpersuaded by plaintiffs’ argument. Constitutional

claims ordinarily are not subject to an administrative

exhaustion requirement. Patsy v. Bd. of Regents of State of

Fla., 457 U.S. 496, 516 (1982). Accordingly, a statute of

limitations is not tolled merely because the plaintiff is also

pursuing an administrative remedy. Smith v. McClammy, 740 F.2d

925, 927 (11th Cir. 1984); Gudzelak v. Jurdan, 495 Fed. Appx.

217, 219 (3d Cir. 2012).

It is clear from a fair reading of the complaint that

plaintiffs were well aware of their potential claims for more

than six years before they filed their complaint. There is no

reason why the applicable statute of limitations should be

tolled. Accordingly, I agree with the defendants that

plaintiffs’ claims must be dismissed.

Defendants’ motion to dismiss (Doc. No. 6) is granted.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

September 22, 2015

cc: Keelin Banks, pro se Daniel Banks, pro se Robert Joseph Dietel, Esq. Charles P. Bauer, Esq.