Background
Debra Ann Carr filed a pro se lawsuit in the District of Kansas alleging employment discrimination and retaliation. Because she proceeded in forma pauperis, the district court screened her complaint. A magistrate judge recommended dismissal, concluding the suit was untimely because Carr filed more than ninety days after receiving her EEOC right-to-sue letter. The district court adopted this recommendation, finding Carr’s objection did not address the statute of limitations or proffer equitable tolling arguments.
The court’s reasoning
The court reviewed the dismissal de novo. It held that a statute of limitations is an affirmative defense that a plaintiff need not anticipate in the complaint. A screening dismissal based on such a defense is only appropriate when the defense is obvious from the face of the complaint and no further factual record is required. The court found Carr’s objection, which cited homelessness and hospitalization, was sufficient to raise the issue of equitable tolling for the first time. Because the district court had not ruled on the equitable tolling issue, the appellate court favored remand for the district court to examine the matter.
We agree. There can be no question that a limitations issue is an affirmative defense.
Fernandez v. Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018)
What it means going forward
Employment discrimination plaintiffs proceeding pro se and in forma pauperis may raise equitable tolling arguments in their objections to magistrate recommendations without having to plead them in the initial complaint. Courts cannot dismiss such cases sua sponte based on timeliness unless the defense is obvious from the face of the complaint.
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