Dennis Beasley v. Arthur Keiper

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1870
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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* [UNPUBLISHED]
*
*
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Submitted: May 8, 2002
Filed: May 16, 2002
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Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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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

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*
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
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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.

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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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