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                 SUPREME COURT OF ARKANSAS
                                          No.   CV-12-400

                                                     Opinion Delivered   December 5, 2013
REGINALD R. EARLY                                    PRO SE MOTION FOR AN
                                 APPELLANT           EXTENSION OF TIME TO FILE
                                                     REPLY BRIEF [JEFFERSON COUNTY
v.                                                   CIRCUIT COURT, 35CV-12-73]
LAWRENCE E. BAKER AND MICHAEL                        HONORABLE JODI RAINES DENNIS,
FERRICHER                                            JUDGE
                    APPELLEES


                                                     ORDER AFFIRMED; MOTION MOOT.


                                          PER CURIAM

       On February 13, 2012, appellant Reginald R. Early, an inmate in the East Arkansas

Regional Unit of the Arkansas Department of Correction (ADC), filed a pro se civil-rights action

against appellees Lawrence E. Baker and Michael Ferricher, two ADC officers, in both their

individual and official capacities pursuant to 42 U.S.C. § 1983 (2006). Appellant also alleged

state-law claims of assault and battery as well as negligence. The trial court dismissed the case

with prejudice, and appellant lodged this appeal of the order. Both appellant’s brief-in-chief and

appellees’ brief were timely filed. Now before us is appellant’s pro se motion for extension of

time to file reply brief. As it is clear from the record and the filed briefs that appellant could not

prevail if the appeal were permitted to go forward, the order is affirmed, and the motion is moot.

       In the complaint, appellant alleged the use of excessive force and failure to protect in

violation of the Eighth Amendment to the United States Constitution as well as the abuse of

authority in violation of the Due Process Clause of the Fourteenth Amendment. More
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specifically, appellant alleged that, on January 11, 2009, appellees used excessive force by twice

spraying him with a chemical agent and thereafter failing to follow procedure by denying him

a shower and change of clothes. He further claimed that appellee Ferricher failed to protect him

from the actions of appellee Baker on that date and that appellee Baker abused his authority in

filing a false disciplinary charge against him based on the January 11 incident. Appellant also

alleged state-law claims of assault and battery. He sought injunctive and declaratory relief as well

as an award of compensatory and punitive damages. In an amended complaint, appellant

additionally alleged a state-law claim of negligence against appellee Ferricher based on the failure

to protect him, and he did not include the claim of abuse of authority.

       In separate motions, appellees moved to dismiss both the complaint and the amended

complaint on the basis that the claims were barred by the statute of limitations and immunity.

In response, appellant alleged that he had previously filed a civil-rights action on March 4, 2011,

alleging excessive force, failure to protect, and abuse of authority, and he contended that his

action was not barred by the statute of limitations due to the application of the Arkansas savings

statute, Arkansas Code Annotated section 16-56-126(a) (Repl. 2005). Appellant also argued that

appellees were not entitled to immunity from the claims. Attached to appellant’s response were

an “Order of Dismissal” and “Order Denying Relief from Judgment” from the previously filed

case. In the Order of Dismissal, entered July 12, 2011, the trial court dismissed the previously

filed case without prejudice pursuant to Rule 4(i) of the Arkansas Rules of Civil Procedure for

failure to obtain service. In the Order Denying Relief from Judgment, entered September 23,

2011, the trial court considered appellant’s motion for relief from the dismissal and found that



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a lack of knowledge of the rules alone was not good cause for failure to comply with service

rules. In the order, the trial court noted that summonses had been issued and delivered to the

Jefferson County Sheriff’s Office for service but that both summonses had been returned as not

served. Appellant did not attach a copy of the complaint or any other pleadings from the

previously filed case to his response. The trial court dismissed appellant’s case with prejudice,

finding that appellees’ arguments to support the dismissal were well-founded and that appellant

had failed to state a claim upon which relief could be granted.1 We hold that appellant’s claims

are barred by the statute of limitations. In so holding, it is unnecessary to reach the issue of

immunity or address appellant’s remaining points on appeal.2

        The United States Supreme Court has held that § 1983 claims accruing within a particular

state should be governed by that state’s statute of limitations governing personal-injury claims.

Wilson v. Garcia, 471 U.S. 261 (1985), superseded on other grounds by 28 U.S.C. § 1658(a), as recognized



        1
         On the date that he filed the amended complaint, appellant filed a “Motion for Leave to
File An Amended Complaint and Brief in Support.” Thereafter, appellees filed a motion to
dismiss the amended complaint along with a brief in support based on the same arguments
raised in the motion to dismiss the original complaint. The trial court did not rule on appellant’s
motion for leave. Instead, the court dismissed the “case” with prejudice on April 12, 2012.
Appellant contends for the first time on appeal that the trial court erred in dismissing his case
before ruling on the motion for leave. However, relief from the trial court was not required in
order to file the amended complaint. Pursuant to Rule 15(a) of the Arkansas Rules of Civil
Procedure, with the exception of pleading certain defenses, a party may amend his pleadings at
any time without leave of the court. In its order of dismissal, the trial court stated that based on
its examination of the “pleadings” and applicable law, it dismissed the “case” with prejudice.
Based on our rules of procedure and the language in the order, it is clear that the trial court
considered both the original complaint and the amended complaint and that the order dismissed
both pleadings.
        2
        In addition, we do not consider arguments made for the first time on appeal. State v.
Robinson, 2013 Ark. 425, ___ S.W.3d ___.

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in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004). In Arkansas, the statute of limitations

for personal-injury claims is three years. Ark. Code Ann. § 16-56-105(3) (Repl. 2005). Thus, we

apply the three-year limitations period to appellant’s § 1983 claims. Likewise, the three-year

statute of limitations applies to appellant’s state-law negligence claim. See Ark. Code Ann. § 16-

56-105; Bryan v. City of Cotter, 2009 Ark. 457, 344 S.W.3d 654. Accordingly, appellant’s § 1983

and state-law negligence claims are barred by the applicable three-year limitations period.

       The defendant has the burden of affirmatively pleading the running of the statute of

limitations as a defense. Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415. When it is clear from

the face of the complaint that the action is barred by the applicable limitations period, the

burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of

limitations was tolled. Id. Because the § 1983 and negligence claims arise from events that

allegedly occurred on January 11, 2009, and the complaint was not filed until February 13, 2013,

it is clear from the face of the complaint that these claims are barred by the three-year limitations

period. Because appellees raised the statute of limitations as a defense in their motions to

dismiss, the burden shifted to appellant to prove by a preponderance of the evidence that the

limitations period was tolled by the savings statute.

       Pursuant to the savings statute, when a plaintiff timely commences the original action and

then subsequently suffers a nonsuit or the judgment is arrested or reversed, a new action may

be commenced within one year from the date of the nonsuit suffered or judgment arrested or

reversed. Ark. Code Ann. § 16-56-126(a) (Repl. 2005). We have consistently referred to the

savings statute as requiring that the subsequent action be for the same cause as the previously



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filed action. Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993); Carton

v. Missouri Pac. R.R. Co., 295 Ark. 126, 747 S.W.2d 93 (1988); Oliver v. Miller, 239 Ark. 1043, 396

S.W.2d 288 (1965); see Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d

525 (2003) (holding plaintiff could not invoke protection of savings statute as against co-

defendant, who was not a party to the original action, because the three-year limitations period

for filing a fraud claim had expired by the time that plaintiff refiled and then amended the

complaint to add co-defendant). The only evidence of the cause brought in the previously filed

action is found in the Order Denying Relief from Judgment with the heading, “Lawrence Baker,

et al.” In the order, the trial court referred to appellant’s previously filed action as alleging that

his civil rights had been violated, and it indicated that “both” summonses had been returned as

not served. However, appellant fails to include the complaint or any other filing from the

previous action in the record to show that he is raising the same claims as in the previously filed

action. Further, he fails to provide evidence that appellee Ferricher was even named as a

defendant in the previously filed action. Accordingly, he does not meet his burden of proving

that the action is for the same cause as the previously filed action as necessary to toll the

limitations period.

       Moreover, Arkansas Code Annotated section 16-56-126 requires that if an action is

“commenced” within the applicable statute-of-limitations period, and the plaintiff suffers a

nonsuit, a new suit may be “commenced” within one year from the date of the dismissal. Thus,

before the statute applies, an action must have been commenced. Rettig v. Ballard, 2009 Ark. 629,

362 S.W.3d 260 (citing Ark. Code Ann. § 16-56-126(a)). For purposes of the savings statute, a



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suit is commenced when the complaint is timely filed and service of the complaint and summons

(effective or defective) is completed within the 120-day period required by Rule 4(i) of the

Arkansas Rules of Civil Procedure. Id. (citing Forrest City Mach. Works, Inc., 315 Ark. 173, 866

S.W.2d 372). The failure to timely obtain completed service in the previously filed action

prevents the plaintiff from invoking the protection of the savings statute. Thomson v. Zufari, 325

Ark. 208, 924 S.W.2d 796 (1996); Hicks v. Clark, 316 Ark. 148, 870 S.W.2d 750 (1994).

       Here, the complaint was filed in the previous action before the three-year statute-of-

limitations period expired. However, service of the complaint and summons was not made on

appellees, and the complaint was dismissed due to failure of service. Accordingly, the action was

not commenced for purposes of the savings statute so that appellant is not entitled to the benefit

of the savings statute. The limitations period was not tolled, and appellant was required to file

the § 1983 claims and the negligence claim on or before January 11, 2012. Because the

complaint in the current action was not filed until February 13, 2012, and the limitations period

was not tolled, the trial court properly dismissed the case as to these claims.

       Appellant’s state-law claims of assault and battery are also barred by the statute of

limitations. Arkansas Code Annotated section 16-56-104(2) (Repl. 2005) imposes a limitation

of one year on all actions for assault and battery. The alleged assault and battery occurred on

January 11, 2009; thus, a complaint based on these claims was barred by the one-year limitations

period when the initial action was filed on March 4, 2011. Not only was appellant not entitled

to the savings statute, as held herein, but his action was also barred because, even if applicable,

the savings statute cannot revive a claim that was already time-barred when the first action was



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filed.3

          Affirmed; motion moot.

          Reginald R. Early, pro se appellant.

          No response.




          3
         Appellant’s argument that he invoked 28 U.S.C. § 1367 (2006), the federal supplemental-
jurisdiction statute, thereby tolling the limitations period for the state-law assault-and-battery
claims is without merit. This statutory section addresses the supplemental jurisdiction of federal
district courts over claims related to a civil action of which the federal district court has original
jurisdiction, and it sets out the period of limitations for such supplemental claims. Here, the trial
court is a state court with original, not supplemental, jurisdiction of the assault-and-battery
claims, and 28 U.S.C. § 1367 is not applicable.


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