Flowers v. Phelps et al

Filing 78

MEMORANDUM - Signed by Judge Gregory M. Sleet on 7/5/12. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DAMONE E. FLOWERS,
Plaintiff,
v.
WARDEN PERRY PHELPS, et al.,
Defendants.

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) Civ. Action No. 08-836-GMS
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MEMORANDUM
I. INTRODUCTION
The plaintiff, Damone E. Flowers. ("Flowers"), an inmate at the James T. Vaughn
Correctional Center, Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983. 1 (D.I.
2.) He appears prose and was granted permission to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. (D.I. 4.) The case proceeds on the amended complaint. (D.I. 23.) Before the
court are the defendants' motion for judgment on the pleadings and motion to stay proceedings
and Flowers' motion to amend, motion for an extension oftime, and motion to strike the motion
for judgment on the pleadings. (D.I. 57, 63, 65, 68, 71.) For the reasons that follow, the court
will grant the defendants' motion for judgment on the pleadings and will deny as moot the
remaining motions.

II. BACKGROUND
On October 30, 2002, Flowers was convicted following a jury trial in the Superior Court
in and for New Castle County, Delaware ("Superior Court") of first degree murder and
1

When bringing a§ 1983 claim, a plaintiff must allege that some person has deprived him
of a federal right, and that the person who caused the deprivation acted under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).

possession of a firearm during the commission of a felony. He was sentenced to life
imprisonment with no benefit of probation or parole on the murder charge and ten years at level
V, three years of which are the minimum mandatory period of incarceration, for the weapons
charge. The Delaware Supreme Court affirmed the conviction on August 31, 2004. On June 27,
2005, the Superior Court denied without prejudice to amend Plaintiffs motion for postconviction relief. See State v. Flowers, 2010 WL 2338704 (Del. Super. Ct. June 8, 2010); State

v. Flowers, 2005 WL 2249523 (Del. Super. Ct. June 27, 2005).
On September 20, 2005, Flowers filed a third Rule 61 motion for post-conviction relief,
and, on December 13, 2005, the Superior Court denied the motion as procedurally barred. See

Flowers v. Phelps, 2008 WL 4377704 (D. Del. Sept. 22, 2008). Flowers was given thirty days to
appeal, until January 12, 2006. He delivered his notice of appeal for mailing to the defendant
Correctional Office Kenneth Hedges ("Hedges") on January 8, 2006, to forward to the Clerk of
the Delaware Supreme Court. Attached to the notice of appeal was a pay-to order for postage
dated January 8, 2006. The pay-to was logged in the housing unit on January 13, 2006 and
mailed from the VCC on January 14, 2006. (D.I. 73.) The pay-to was deducted from Flower's
account on January 20, 2006. (!d.)
On January 17, 2006, the Clerk of the Delaware Supreme Court issued a notice to show
cause why Flower's notice of appeal should not be dismissed for failure to file by the January 13,
2006 deadline. (D.I. 64, ex. B) Flowers responded to the notice to show cause on January 20,
2006. (Id.) The VCC provided a time-line to the Delaware Supreme Court on February 24,
2006. On April 4, 2006, the Delaware Supreme Court dismissed the appeal as untimely, and
found that the delay was not attributable to court-related personnel. Flowers v. State, 2006 WL
2

8893268 (Del. Apr. 4, 2006). Next, Flowers filed a petition for writ of habeas corpus pursuant to
28 U.S.e. § 2254 in this district court, but it was denied as untimely, Flowers v. Phelps, 2008
WL 4377704 (D. Del. Sept. 22, 2008), a certificate of appealability denied in Flowers v. Phelps,
No. 08-4157 (3d eir. Apr. 15, 2009).
Flowers submitted a grievance on February 7, 2006 regarding the delay in mailing his
appeal. (D.I. 73, ex.) The grievance was resolved on October 20, 2006, and Flowers filed an
appeal on October 22, 2006, responded to by the defendant Perry Phelps ("Phelps") on
November 17, 2006. (D.I. 73, ex.)
Flowers seeks: (1) to compel the defendants to show that the vee does not violate an
inmate's constitutional rights in its unnecessary delay in outgoing legal; (2) the judicial creation
of a state prison mailbox rule similar to the ones recognized by federal courts; and (3) a court
determination that plaintiff suffered actual harm to his collateral attack on his conviction due to
the undue delay of his appeal. In the alternative, Flowers seeks a ruling of statutory or equitable
tolling with regard to his habeas petition, and for a determination that prison officials are
synonymous with court personnel for purposes of mail delivery by pro se prisoners.

III. MOTION FOR JUDGMENT ON THE PLEADINGS
A. Standard of Review
Pursuant to Rule 12(c), "[a]fter the pleadings are closed- but early enough not to delay
trial- a party may move for judgment on the pleadings." Fed. R. eiv. P. 12(c). The court will
grant a motion for judgment on the pleadings if the movant establishes that "there are no issues
of material fact, and that he is entitled to judgment as a matter of law." Allstate Property and

Cas. Ins. Co. v. Squires, 667 F.3d 388, 390 (3d eir. 2012). When considering a motion for
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judgment on the pleadings, the court must accept all of the allegations in the pleadings of the
party against whom the motion is addressed as true and draw all reasonable inferences in favor of
the non-moving party. /d.

B. Discussion
The court turns first to the statute of limitations issue as it is dispositive of this case. The
defendants contend that the complaint is time-barred and that no extraordinary circumstances
exist to toll the statute of limitations. The defendants contend that the limitations period began to
run on January 17, 2006, the date the Delaware Supreme Court Clerk notified Flowers ofhis late
appeal. Flowers filed his complaint on November 7, 2008. 2 Flowers responds that statutory
tolling occurred while he exhausted his administrative remedies. Inexplicably, the defendants do
not address the issue of tolling while Flowers exhausted his administrative remedies.
The parties agree that, for purposes of the statute of limitations, § 1983 claims are
characterized as personal injury actions. Wilson v. Garcia, 471 U.S. 261,275 (1983). In
Delaware,§ 1983 claims are subject to a two-year limitations period. See 10 Del. C. § 8119;

Johnson v. Cullen, 925 F.Supp. 244,248 (D. Del. 1996). Section 1983 claims accrue "when
plaintiff knows or has reason to know of the injury that forms the basis of his or her cause of
action." Id. Claims not filed within the two-year statute of limitations period are time-barred
and must be dismissed. See Smith v. State, 2001 WL 845654, at *2 (D. Del. July 24, 2001).

2

The defendants indicate that the complaint was filed on November 10, 2008. The
computation of time for complaints filed by pro se inmates is determined according to the
"mailbox rule." See Houston v. Lack, 487 U.S. 266 (1988); Burns v. Morton, 134 F.3d 109, 112
(3d Cir. 1998); Gibbs v. Decker, 234 F. Supp. 2d 458,463 (D. Del. 2002). Here, the complaint
was signed on November 7, 2008, and its envelope contains the same date. Therefore, Flowers'
complaint was filed on November 7, 2008, the date it was signed and placed in the mail.
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It is apparent from the filings that Flowers' claim accrued on January 20, 2006. On that

date, he filed a response to the Delaware Supreme Court's notice to show cause why his appeal
should not be dismissed as untimely. (D.I. 64, ex. B.) Hence, as of January 20, 2006, Flowers
knew, or had reason to know, that his notice of appeal had not been timely received by the
Delaware Supreme Court.
When Flowers filed his complaint on November 7, 2008, more than two years had passed
from the date that he because aware of his claim. The defendants, however, fail to consider the
time it took for Flowers to exhaust his administrative remedies. Specifically, the record reflects
that Flowers submitted a grievance on February 7, 2006, and had exhausted his administrative
remedies as ofNovember 17, 2006, the date that Phelps advised him he had received the
grievance appeal and that there was nothing more his office could do. (D.I. 73, ex.)
The Third Circuit has not yet addressed the issue of tolling while a prisoner exhausts
available administrative remedies, but has noted that it may be appropriate to toll the statute of
limitations during said time. See Dasilva v. Sheriff's Dep 't, 413 F. App'x 498 n.3 (3d Cir. 2011)
(not reported); Badley v. Bourne, 239 F. App'x 725 n.l (3d Cir. 2007) (not reported); Shakuur v.

Costello, 230 F. App'x 199 (3d Cir. 2007) (not reported). District courts within our circuit have
found that tolling of the statute should occur during this period of time, see Ballard v. Williams,
2010 WL 7809047, at *5 (M.D. Pa. Dec. 9, 2010) (citing cases), and the court finds the authority
persuasive. See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005) (agreeing with "the
uniform holdings of the circuits that have considered the question that the applicable statute of
limitations must be tolled while a prisoner completes the mandatory exhaustion process");

Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001) (holding "a federal court relying on the

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Illinois statute of limitations in a § 1983 case must toll the limitations period while a prisoner
completes the administrative grievance process"); Brown v. Morgan, 209 F.3d 595, 596 (6th Cir.
2000) (because the Prison Litigation Reform Act ("PLRA") prevents bringing § 1983 action until
administrative remedies are exhausted, state statute of limitations tolled while prisoner
exhausted); Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999) (state law precedent dictates
that PLRA's exhaustion requirement prevents state statute of limitations from running until
prisoner has exhausted). "Principles of equitable tolling usually dictate that when a time bar has
been suspended and then begins to run again ... the time remaining on the clock is calculated by
subtracting from the full limitations period whatever time ran before the clock was stopped."

United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991).
As discussed above, January 20, 2006 is the date Flowers clearly knew the defendants had
not timely mailed his notice of appeal to the Delaware Supreme Court. Consequently, the
limitations period began running on January 21, 2006, and for 17 days until February 7, 2006,
when Flowers submitted his grievance to prison officials regarding the issue. See Fed. R. Civ. P.
6(a)(1)(A). At that time, Flowers had a little less than two years remaining of the original twoyear limitation period. The limitations clock stopped running during the pendency of the
exhaustion of administrative remedies and began running again on November 18, 2006,
following Flowers' exhaustion of administrative remedies on November 17, 2006. Upon
exhaustion, Flowers, again, had a little less than two years to initiate this lawsuit. Yet, he did not
file the complaint until November 7, 2008, some seven days after the statute of limitations had
expired on October 31, 2008. Hence, his claims are time-barred by the two year statute of

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limitations. Accordingly, the court will grant the defendants' motion for judgment on the
pleadings as the claims are time-barred. 3

IV. CONCLUSION
For the above reasons, the court will grant the motion for judgment on the pleadings and
will deny as moot the remaining motions. (D.I. 57, 63, 65, 68, 71.)
An appropriate order will be issued.

3

Inasmuch as plaintiffs claims are time-barred, the court will not address the other issues
raised in the defendants' motion for judgment on the pleadings.
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