Smith v. Ouzts

S.D. Mississippi

Smith v. Ouzts

629 F. Supp. 1001, 1986 U.S. Dist. LEXIS 28903

District Court, S.D. Mississippi·Decided February 25, 1986·No. Civ. A. W85-0198(B)·Published·Cited by 5 cases

Opinion

ORDER

BARBOUR, District Judge.

The Court, having considered Defendants’ Motion to Dismiss, finds that the Motion is not well taken and is hereby denied. Plaintiff is a pro se prisoner who submitted his Complaint, together with his Application to proceed in forma pauperis and supporting affidavit, to the office of the Clerk of the Court on May 25, 1985. His file was referred to the Magistrate who entered an Order on November 19, 1985, allowing Plaintiff to proceed in forma pauperis and directing the Clerk to file the Complaint, which was done on November 19, 1985. See, e.g., 28 U.S.C. § 1915(a).

The Complaint alleges Section 1983 claims based upon assaults upon Plaintiff which occurred on August 26, 1984. Defendants’ Motion to Dismiss correctly asserts that under Gates v. Spinks, 771 F.2d 916 (5th Cir.1985) the one year statute of limitations set forth in Section 15-1-35 of Miss. Code Ann. (Supp.1984) is applicable to this type of claim. However, since the Plaintiff had no control over when the Magistrate would allow his Complaint to be filed, the operable date for the purposes of the statute of limitation is the date of receipt by the Clerk of the Court.

Free access — add to your briefcase to read the full text and ask questions with AI

ORDER

BARBOUR, District Judge.

The Court, having considered Defendants’ Motion to Dismiss, finds that the Motion is not well taken and is hereby denied. Plaintiff is a pro se prisoner who submitted his Complaint, together with his Application to proceed in forma pauperis and supporting affidavit, to the office of the Clerk of the Court on May 25, 1985. His file was referred to the Magistrate who entered an Order on November 19, 1985, allowing Plaintiff to proceed in forma pauperis and directing the Clerk to file the Complaint, which was done on November 19, 1985. See, e.g., 28 U.S.C. § 1915(a).

The Complaint alleges Section 1983 claims based upon assaults upon Plaintiff which occurred on August 26, 1984. Defendants’ Motion to Dismiss correctly asserts that under Gates v. Spinks, 771 F.2d 916 (5th Cir.1985) the one year statute of limitations set forth in Section 15-1-35 of Miss. Code Ann. (Supp.1984) is applicable to this type of claim. However, since the Plaintiff had no control over when the Magistrate would allow his Complaint to be filed, the operable date for the purposes of the statute of limitation is the date of receipt by the Clerk of the Court.

Smith v. Ouzts, 629 F. Supp. 1001, 1986 U.S. Dist. LEXIS 28903 (S.D. Miss. 1986).

Pincite

629 F. Supp. 1001 (Smith v. Ouzts) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related