MOON v. MARBERRY et al

Filing 37

ENTRY Discussing Motion for Reconsideration and Amended Complaint. In the 18 Entry of May 13, 2014, the Court dismissed each of Moon's Bivens claims as barred by the two-year statute of limitations. Moon seeks reconsideration of this ruling arguing that his claims are not time-barred because the statute of limitations was tolled during the time that he was exhausting his administrative remedies as required by the Prison Litigation Reform Act. In these circumstances, he has alleged fa cts sufficient to establish a statute of limitations defense and has pled himself out of court. His 20 motion for reconsideration is therefore denied. Moon's 22 Amended Complaint is now subject to the screening requirement of 28 U.S.C. &# 167; 1915A. Moon's Amended Complaint raises essentially the same claims as those raised in his original complaint. For the reasons discussed above, each of Moon's Bivens claims must be dismissed as time-barred. Moon's 31 motion requesting screening is granted consistent with these rulings.Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 10/8/2014. (AH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DARNELL W. MOON,
Plaintiff,
vs.
CHARLES E. SAMUELS, Director of
BOP
Defendant.

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Case No. 2:14-cv-67-JMS-WGH

Entry Discussing Motion for Reconsideration and Amended Complaint
In the Entry of May 13, 2014, the Court screened the plaintiff’s original complaint pursuant
to 28 U.S.C. § 1915A. Based on that screening, the Court dismissed each of plaintiff Darnell
Moon’s claims brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)
and allowed his claim brought pursuant to the Administrative Procedures Act (“APA”) challenging
the establishment by the Federal Bureau of Prisons (“BOP”) of the Blue/Gold Program to proceed.
The plaintiff has moved to reconsider the ruling dismissing his Bivens claims and has filed an
Amended Complaint. The Court will consider each of these filings.
I. Motion for Reconsideration
In the Entry of May 13, 2014, the Court dismissed each of Moon’s Bivens claims as barred
by the two-year statute of limitations.1 Moon seeks reconsideration of this ruling arguing that his
claims are not time-barred because the statute of limitations was tolled during the time that he was

1

See King v. One Unknown Federal Correctional Officer, 201 F.3d 910, 913 (7th Cir. 2000) (applying a two-year
statute of limitations to Bivens claims).

exhausting his administrative remedies as required by the Prison Litigation Reform Act. Moon
asserts in his amended complaint:
On 3/25/2010, plaintiff presented the facts related to this lawsuit to Counselor
Parker. The BP-8 was denied. On 3/15/2010, plaintiff presented the facts related to
this lawsuit to the Warden. On 3/25/2010 his request was denied. Plaintiff presented
the facts related to this complaint to the Regional Director on 4/19/2010. Plaintiff’s
appeal was denied on 5/12/2010.
(Amended Complaint pp 32-33). Based on these facts, Moon argues that the statute of limitations
started running on his claims on May 12, 2010, and would have expired on May 12, 2012. He
argues, however, that because he was transferred to the USP Marion in January of 2012 and again
presented these claims through the administrative remedy process, that the statute of limitations
was once again tolled during the time he again exhausted his administrative remedies.
As the Court explained in its previous Entry, “[i]t is, of course, ‘irregular’ to dismiss a
claim as untimely under Rule 12(b)(6). . . .However, . . . dismissal under Rule 12(b)(6) on the basis
of a limitations defense may be appropriate when the plaintiff effectively pleads [him]self out of
court by alleging facts that are sufficient to establish the defense.” Hollander v. Brown, 457 F.3d
688, 691 n.1 (7th Cir. 2006) (internal citations omitted). Although the requirements of notice
pleading are minimal, when a plaintiff “pleads facts that show his suit is time barred or otherwise
without merit, he has pleaded himself out of court.” Tregenza v. Great American Communications
Co., 12 F.3d 717, 718 (7th Cir. 1993). That is exactly what Moon has done here. He has alleged
that he completed his administrative remedy process on May 12, 2010. Even assuming that the
two-year statute of limitations began to run on that date, 2 he had until May 12, 2012 in which to
file this lawsuit at the latest, but failed to do so until March 12, 2014. The fact that he began again

The Court acknowledges that in Illinois, the statute of limitations may be tolled while a prisoner
exhausts his available administrative remedies, see Walker v. Sheahan, 526 F.3d 973, 978 (7th
Cir. 2008), the Court discerns no such law in Indiana.
2

in January of 2012 to exhaust administrative remedies does not resurrect those claims. Moon could
have filed suit any time after May 12, 2010, but did not do so until nearly four years later. In these
circumstances, he has alleged facts sufficient to establish a statute of limitations defense and has
pled himself out of court. His motion for reconsideration [dkt 20] is therefore denied.
II. Amended Complaint
Moon’s Amended Complaint [dkt 22] is now subject to the screening requirement of 28
U.S.C. § 1915A. Pursuant to this statute, “[a] complaint is subject to dismissal for failure to state
a claim if the allegations, taken as true, show that plaintiff is not entitled to relief.” Jones v. Bock,
127 S. Ct. 910, 921 (2007). Moon’s Amended Complaint raises essentially the same claims as
those raised in his original complaint. For the reasons discussed above, each of Moon’s Bivens
claims must be dismissed as time-barred. Moon’s APA claim shall proceed against defendant
Charles E. Samuels for the reasons explained in the Entry of May 13, 2014. This defendant has
already been served with process. Moon’s motion requesting screening [dkt 31] is granted
consistent with these rulings.
IT IS SO ORDERED.

October 8, 2014
Date: _________________
Distribution:
Darnell W. Moon
34077-044
5536 Highway 32 East
P.O. Box 459
Farmington, MO 63640
All electronically registered counsel

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana