Robert W. Lohman, Sr v. Gary Kempker , 34 F. App'x 514 ( 2002 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 02-1870
    ___________
    Robert W. Lohman, Sr.,               *
    *
    Plaintiff-Appellant,      *
    *
    v.                              *
    *
    Gary Kempker; Steve Long;            * Appeal from the United States
    Michael Kemna;                       * District Court for the Western
    * District of Missouri.
    Defendants-Appellees      *
    *       [UNPUBLISHED]
    *
    *
    ___________
    Submitted: May 8, 2002
    Filed: May 16, 2002
    ___________
    Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
    ___________
    PER CURIAM.
    Robert W. Lohman, Sr. appeals the district court’s dismissal of his 42 U.S.C.
    § 1983 claim. In 1996, Missouri changed its prisoner classification system so that
    any prisoner with an earlier escape from the prison perimeter or a serious escape
    attempt received a Level 5 classification. Because Lohman had made a serious
    escape attempt in 1983, he was reclassified and moved from a Level 4 facility to a
    Level 5 prison. Lohman contends this reclassification violates his civil rights. The
    district court* granted Lohman permission to proceed without prepayment of fees in
    the district court, then dismissed Lohman’s claim because it was untimely and failed
    to state a claim for which relief could be granted. Lohman appeals the dismissal and
    moves to proceed without prepayment of fees on appeal, for appointment of counsel,
    and for production of documents.
    Because Lohman is poor and has not filed three earlier frivolous lawsuits, we
    grant his motion to proceed without prepayment of fees on appeal. See 28 U.S.C.
    § 1915. Lohman must pay the $105 appellate filing fee in installments as provided
    by the Prison Litigation Reform Act. 28 U.S.C. § 1915(b). Like the district court, we
    conclude Lohman’s claim is untimely and fails to state a claim for which relief can
    be granted. To determine the applicable limitations period for § 1983 claims, federal
    courts borrow state statutes of limitations for general personal injury claims. Owens
    v. Okure, 
    488 U.S. 235
    , 249-50 (1989); Wilson v. Garcia, 
    471 U.S. 261
    , 276 (1985).
    In Missouri, the applicable limitations period for general personal injury claims is
    five years. Mo. Rev. Stat. § 516.120(4) (2000). Lohman’s claim exceeds the
    applicable limitations period by six months and is thus untimely. Even if Lohman’s
    claim was timely, it would fail because Lohman has not stated the denial of any
    constitutional right. Missouri may incarcerate Lohman in any penal institution it
    chooses, so long as it does not choose the penal institution for an unconstitutional
    reason. Olim v. Wakinekona, 
    461 U.S. 238
    , 248 (1983). Having concluded
    Lohman’s claim is without merit, we dismiss the appeal as frivolous under 28 U.S.C.
    § 1915(e)(2)(B). We also deny Lohman’s motions for appointment of counsel and
    for production of documents.
    *
    The Honorable Howard F. Sachs, United States District Judge for the Western
    District of Missouri.
    -2-
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -3-
    

Document Info

Docket Number: 02-1870

Citation Numbers: 34 F. App'x 514

Filed Date: 5/16/2002

Precedential Status: Non-Precedential

Modified Date: 1/12/2023