IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

FRANK SCOT JONES, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 3:13-CV-548

)

KENNY WHITE, and )

CLAIR RETECK BARNES, )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on the amended complaint filed

pursuant to 42 U.S.C. § 1983 by Frank Scot Jones, a pro se

prisoner, on July 11, 2013. For the reasons set forth below, this

case is DISMISSED pursuant to 28 U.S.C. § 1915A. 

DISCUSSION

Jones alleges that Kenny White used excessive force against

him and/or denied him medical treatment during and after a cell

shakedown in 2008. This claim is barred by the statute of

limitations because “Indiana’s two-year statute of limitations . .

. is applicable to all causes of action brought in Indiana under 42

U.S.C. § 1983.” Snodderly v. R.U.F.F. Drug Enforcement Task Force,

239 F.3d 892, 894 (7th Cir. 2001). Because it has been more than

two years since these claims arose, this case must be dismissed. 

Though Jones previously filed these claims in Jones v. Miami

Correctional Facility, 3:08-CV-497 (N.D. Ind. filed October 27,

2008), the Journey’s Account Statute does not extend the
limitations period because that case was dismissed on October 13,

2011, pursuant to Federal Rule of Civil Procedure 41(b) for failure

to prosecute. 

The Journey Account Statute provides that the limitation

period is only extended where:

(1) the plaintiff fails in the action from any cause

except negligence in the prosecution of the action;

(2) the action abates or is defeated by the death of

a party; or

(3) a judgment is arrested or reversed on appeal.

Indiana Code 34-11-8-1(a). Here, Jones’ prior case did not end as

a result of a death or while on appeal, therefore the deadline can

only be extended if the prior case ended for some reason other than

negligence in its prosecution. However, that is not the case here.

The prior case ended because he did not provide the Court with

his current address. That constitutes negligence in prosecution

because “The demand that plaintiffs provide contact information is

no esoteric rule of civil procedure, but rather the obvious minimal

requirement for pursuing a lawsuit.” Tylicki v. Ryan, 244 F.R.D.

146, 147 (N.D. N.Y 2006) (quotation marks and citation omitted).

See also Eads v. Cmty. Hosp., 932 N.E.2d 1239, 1244 (Ind. 2010)

(“[N]egligence in the prosecution is broader than its origin in

failure to . . . prosecute as required by Indiana Trial Rule 41(E),

and the term has been said to apply to any failure of the action

due to negligence in the prosecution.”) (quotation marks omitted).

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Though the prior case was dismissed without prejudice, that

only permitted Jones to re-file within the deadline proscribed by

the statute of limitations; it did not extend that deadline.

Moreover, before filing this case, Jones sought to reopen the prior

case by arguing that he was prevented from litigating it while he

was housed at the Miami Correctional Facility. However, the Court

denied that motion after finding that he had waited more than a

year to provide the Court with his new address after he moved out

of the Miami Correctional Facility. Therefore it is clear that the

prior case ended as a result of Jones’ negligence in its

prosecution. Because the statute of limitations was not extended by

his prior lawsuit, this case is untimely and must be dismissed. 

CONCLUSION

For the reasons set forth above, this case is DISMISSED

pursuant to 28 U.S.C. § 1915A. 

DATED: July 18, 2013 /s/RUDY LOZANO, Judge

United State District Court

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