United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 09-2192
                                    ___________

Calvin B. Johnson,                       *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Michael W. Mott, Police Chief;           *
City of Milaca,                          * [UNPUBLISHED]
                                         *
             Appellees.                  *
                                    ___________

                              Submitted: April 20, 2010
                                 Filed: May 18, 2010
                                  ___________

Before LOKEN, BYE, and SHEPHERD, Circuit Judges.
                            ___________

PER CURIAM.

       In this 42 U.S.C. § 1983 action, Calvin Johnson appeals the district court’s
with-prejudice dismissal of his complaint under Federal Rule of Civil Procedure
12(b)(1) (lack of subject matter jurisdiction). Because the district court’s dismissal
was based upon a determination that Johnson’s action was barred by the applicable
statute of limitations, we first conclude that the district court erred in dismissing
Johnson’s complaint under Rule 12(b)(1). See Jessie v. Potter, 

, 713 n.2
(8th Cir. 2008) (statute of limitations is typically affirmative defense which defendant
must plead and prove); United States v. Big D Enterprises, Inc., 

, 935
(8th Cir. 1999) (defense based upon statute of limitations is generally waived if not
raised in responsive pleading); see also Hastings v. Wilson, 

, 1058 (8th
Cir. 2008) (de novo review of Fed. R. Civ. P. 12(b)(1) dismissal for lack of subject
matter jurisdiction). However, we agree with the district court’s statute-of-limitations
analysis, and we hold that the dismissal with prejudice was appropriate under Federal
Rule of Civil Procedure 12(b)(6). See Wallace v. Kato, 

, 388 (2007)
(accrual date of § 1983 cause of action is question of federal law; accrual occurs when
plaintiff has “a complete and present cause of action” (citing Bay Area Laundry and
Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 

(1997)));
Egerdahl v. Hibbing Community College, 

, 618 n.3 (8th Cir. 1995)
(§ 1983 claims in Minnesota are governed by six-year limitations period of personal
injury statute (citing Minn. Stat. § 541.05, subd. 1(5)); Kaster v. Iowa, 

,
1382 (8th Cir. 1992) (per curiam) (§ 1983 action accrued when state officials searched
and seized property, and not when plaintiff’s state court action concluded); Wycoff
v. Menke, 

, 984-85 (8th Cir. 1985) (when it appears from face of
complaint itself that limitation period has run, limitations defense may properly be
asserted through Fed. R. Civ. P. 12(b)(6) motion to dismiss); see also Kreutzer v.
Bowersox, 

, 463 (8th Cir. 2000) (tolling is proper only when
extraordinary circumstances beyond petitioner’s control make it impossible to file
petition on time or when conduct of defendant has lulled plaintiff into inaction).

      Accordingly, the district court’s judgment of dismissal with prejudice is
affirmed. See Phipps v. FDIC, 

, 1010 (8th Cir. 2005) (court may affirm
on any basis supported by record).
                       ______________________________




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