Cox v. Sturm Ruger & Co. Inc. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Clinton D. Cox
v. 	Case No. 19-cv-1268-JL
Sturm Ruger & Co., Inc., et al.
REPORT AND RECOMMENDATION
Plaintiff Clinton D. Cox, a federal prison inmate, has sued
firearm manufacturer Sturm Ruger & Co., Inc. (“Sturm Ruger) and
several Sturm Ruger employees under a variety of legal theories
related to testimony at his criminal trial in 2001.1 	Plaintiff’s
complaint (Doc. No. 1) has been referred to the undersigned
magistrate judge for preliminary review, pursuant to LR 4.3(d)
and 28 U.S.C. § 1915(e)(2). 	For the reasons that follow,
plaintiff’s complaint should be dismissed because it is barred
by the applicable statute of limitations.
I. 	Preliminary Review Standard
The magistrate judge conducts a preliminary review of
complaints, like the plaintiff’s, which are filed in forma
1Plaintiff was convicted of drug and firearms charges. 	See
United States v. Cox, 324 F.3d 77 (2d Cir. 2003). 	The firearms
conviction was later vacated for reasons unrelated to the
current lawsuit, and Cox was resentenced on the drug convictions
alone. 	See Cox v. United States, 783 F.3d 145, 146 n.1 (2d Cir.
2015).
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pauperis. 	See LR 4.3(d). 	The magistrate judge may recommend to
the district judge that one or more claims be dismissed if,
among other things, the court lacks jurisdiction, a defendant is
immune from the relief sought, or the complaint fails to state a
claim upon which relief may be granted. 	See 28 U.S.C. §
1915(e)(2); LR 4.3(d). 	In conducting its preliminary review,
the court construes pro se complaints liberally. 	See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	The complaint
must contain “sufficient factual matter, accepted as true, to
‘state a claim to relief.’” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted).
II. 	Background2
In plaintiff’s own words, “[t]he factual allegations in the
complaint against the Sturm Ruger company, boil down to
statements made by it's [sic] employees in a criminal matter
with the United States District Court in Connecticut.”
(citations omitted). 	Plaintiff specifically maintains that
Sturm Ruger's custodian of records, aided by others, delivered
false testimony regarding the company's firearm records.
Complaint (Doc. No. 1) at 2.
2The facts recited herein are taken from plaintiff’s
complaint. 	Only those facts necessary for the court to complete
its preliminary review are included in this report and
recommendation.
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Cox asserts state law claims of fraudulent
misrepresentation and intentional infliction of emotional
distress based on what he describes as false testimony.
III. 	Discussion
The entirety of plaintiff’s compliant is based on actions
the defendants allegedly took at his trial in 2001. 	As such,
they are barred by New Hampshire’s three-year statute of
limitations. 	See N.H. Rev. Stat. Ann. § 508:4, I (“Except as
otherwise provided by law, all personal actions . . . may be
brought only within 3 years of the act or omission complained of
. . .”). 	Moreover, it appears that plaintiff has been pursuing
the theory underlying this case at least as far back as 2004,
when he moved for a new trial based on claims similar to those
he makes here. 	See Cox, 783 F.3d at 146 (“In 2004, [Cox] moved
for a new trial, arguing that the Government knowingly allowed
witnesses to testify falsely at trial to his transactions in
guns of a type that had not yet been manufactured); Cox v.
United States, No. 3:00cr0069(AHN), 2006 WL8426455, at *1 (D.
Conn. Feb. 16, 2006) (“In support of this contention Cox
submitted a letter from the gun manufacturer Sturm, Ruger & Co.,
Inc., purporting to list the shipment dates of two guns with
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certain serial numbers.”).3 	Given his years-long pursuit of the
theory that Sturm Ruger employees provided false testimony, Cox
cannot avail himself of the “discovery rule” built into the New
Hampshire limitations period, which extends the limitations
period to “3 years [after] the plaintiff discovers, or in the
exercise of reasonable diligence should have discovered, the
injury and its causal relationship to the act or omission
complained of,” but only if “the injury and its causal
relationship to the act or omission were not discovered and
could not reasonably have been discovered at the time of the act
or omission.” 	N.H. Rev. Stat. Ann § 508:4, I.
Where the facts alleged in the complaint show that the
claims are time-barred, and there is no possibility that the
statute may have been tolled, the court may dismiss the
complaint on preliminary review. 	See Pigott v. Lynn Police
Dep't, 7 F.3d 218, 1993 WL 375821, at *5 (1st Cir. Sept. 27,
1993). 	So it is here. 	Plaintiff’s complaint should be
dismissed as untimely.
IV. 	Conclusion
For the foregoing reasons, the district judge should
dismiss plaintiff’s complaint. 	See 28 U.S.C. § 1915(e)(2). 	Any
3The trial court rejected Cox’s new trial motion after
determining that the letter in question, upon which Cox also
relies here, was altered. 	Cox, 2006 WL 8426455 at *1.
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objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 6, 2020
cc: 	Clinton D. Cox, pro se
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