Sellers (ID 99071) v. Cline et al
Filing
71
MEMORANDUM AND ORDER granting 58 Motion to Dismiss. Plaintiff is granted until April 10, 2015, to file an amended complaint. If no amended complaint is filed by that date, a judgment of dismissal will be entered. Signed by District Judge Monti L. Belot on 03/19/2015. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JERRY D. SELLERS, JR.,
Plaintiff,
v.
SAM CLINE, WARDEN HCF;
RAY ROBERTS, SECRETARY KDOC;
JACOB FEARS; ISAAC BAKER;
CHARLES MITCHELL;
and STEPHEN JONES,
Defendants.
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CIVIL ACTION
No.
13-3076-MLB-KMH
MEMORANDUM AND ORDER
Before the court are the following:
Defendants’ Motion to Dismiss (Docs. 58, 59);
Plaintiff’s Response (Doc. 63); and
Defendants’ Reply (Doc. 69).
I. Facts and Case History.
Plaintiff is an inmate at Ellsworth Correctional Facility who
is serving a life sentence for sex offenses against minors. He was
previously incarcerated at Hutchinson Correctional Facility (HCF),
where on November 4, 2011, he was attacked in his cell by two other
inmates. Plaintiff contends a correctional officer at HCF who was
remotely operating cell doors in plaintiff’s unit negligently or
intentionally enabled the attack by opening and closing plaintiff’s
cell door three times in succession, which allowed the two attackers
to enter, assault plaintiff, and then exit his cell.
On April 18, 2013, plaintiff filed a pro se complaint (Doc. 1)
asserting claims under 42 U.S.C. § 1983 against defendants Cline,
Roberts and “John Does 1 through 4.”
The complaint identified the
John Doe defendants, respectively, as: #1) a Correctional Officer with
the rank of “CO” [correctional officer] assigned to C-Cellhouse at
HCF; #2) a Correctional Officer with the rank of Corporal assigned to
C-Cellhouse; #3) a Correctional Officer with the rank of “Sergeant
(Living Unit)” assigned to C-Cellhouse; and #4) a Correctional Officer
with the rank of Captain assigned to C-Cellhouse. Doc. 1 at 2.
Allegations within the 23-page complaint indicated that at the time
of the incident, John Doe #1 was remotely operating cell doors from
a control room at the end of a row of cells where plaintiff was
housed. Among other things, plaintiff alleged that the four John Doe
correctional officers were deliberately indifferent to his safety and
that they enabled the inmate attack on November 4, 2011.
Plaintiff filed a motion to proceed in forma pauperis (IFP)
together with his complaint on April 18, 2013. (Doc. 2). He also filed
a motion for appointment of counsel and a motion for preliminary
injunction with affidavits in support. Docs. 4-8. The latter motion
requested injunctive relief pertaining to treatment of sex offenders
in Kansas Department of Corrections’ (KDOC) custody.
On January 22, 2014, Judge Crow denied plaintiff’s motions for
preliminary injunction and for appointment of counsel. Doc. 10. With
regard to plaintiff’s IFP motion, the court directed plaintiff to make
an initial filing fee of $4.00 by February 21, 2014. On February 25,
2014, after plaintiff complied with the order to pay a partial filing
fee, Judge Crow granted the motion to proceed IFP. Doc. 12. His order
directed the clerk to prepare waiver of service forms “for the
defendants” pursuant to Rule 4(d), with service to be made by the U.S.
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Marshal at no cost to plaintiff. The order also directed the KDOC to
investigate and prepare a “Martinez report” (see Martinez v. Aaron,
570 F.2d 317 (10th Cir. 1978)) with a summary of the HCF incident. The
order provided that discovery by plaintiff would not commence until
plaintiff received the Martinez report or an answer to the complaint,
and that the action was exempted from the disclosure provisions of
Fed. R. Civ. P. 26(a) & (f). Doc. 12 at 3. See also Fed. R. Civ. P.
26(a)(1)(B)
(pro
se
actions
by
inmates
exempted
from
initial
disclosure requirements of Rule 26).
The clerk issued waivers of service for defendants Roberts and
Cline; the waivers were executed and filed by March 13, 2014. Docs.
14, 15. No waivers or summonses were issued as to the John Doe
defendants. Plaintiff does not claim that the description of the John
Doe defendants in the initial complaint was sufficient to permit the
service of summonses on these defendants.
On April 29, 2014, the KDOC filed a Martinez report. Doc. 26.
Among other things it indicated the four John Doe correctional
officers described in the complaint were: 1) Charles Mitchell; 2)
Jacob Fears; 3) Isaac Baker; and 4) Stephen Jones. These individuals
had been interviewed by KDOC and gave statements in connection with
the Martinez report investigation.
On June 2, 2014, after Roberts and Cline moved to dismiss the
claims against them, plaintiff moved to amend the complaint to name
the four John Doe correctional officers. Doc. 35. The court granted
the motion to dismiss as to Roberts and Cline but granted plaintiff’s
motion for leave to amend. The court additionally granted plaintiff’s
motion for appointment of counsel, Doc. 46, and gave plaintiff until
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October 15, 2014 to file an amended complaint. Doc. 52. Plaintiff’s
appointed counsel filed the amended complaint on October 15, 2014,
naming
the
four
John
Doe
correctional
officers.
Doc.
53.
The
correctional officers were served with the amended complaint a week
later.1 Docs. 54-57.
II. Motion to dismiss.
Defendants Fears, Mitchell, Jones and Baker move to dismiss the
amended complaint under Rule 12(b)(6), arguing: 1) the claims against
them are barred by the statute of limitations; and 2) the allegations
fail to state a plausible claim. Doc. 58.
1. Statute of limitations. In actions under 42 U.S.C. § 1983,
federal courts apply the statue of limitations for personal injuries
in the state where the claim arose, as long as that law is not
inconsistent with federal law. Hardin v. Straub, 490 U.S. 536, 538
(1989); Wilson v. Garcia, 471 U.S. 261, 176 (1985). In Kansas the
limitation period for personal injuries is two years. See K.S.A. § 60513(a)(4). The incident at HCF occurred on November 4, 2011, meaning
the two-year limitations period would have expired on November 5,
2013, absent some basis for tolling the statute.
Plaintiff’s initial complaint was clearly filed within the twoyear
limitation
period,
but
naming
“John
Doe”
defendants
was
insufficient to identify and state a claim against the individual
correctional officers, and in any event these officers were never
1
Defendants Cline and Roberts were named as defendants in their
official capacities in the
the original complaint. The court
dismissed those claims. Doc. 46. Although Cline and Roberts are
included in the amended complaint, they were not served with that
complaint and plaintiff apparently does not intend to pursue the
claims against them. See Doc. 59 at 3, n.1.
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served with the original complaint. See e.g. Garvin v. City of
Philadelphia, 354 F.3d 215, 220 (3rd Cir. 2003) (“The naming of a John
Doe defendant in a complaint does not stop the statute of limitations
from running or toll the limitations period as to that defendant.”);
Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir. 2004). In order for
plaintiff’s claims against these defendants to be timely, then, at
least one of two conditions must be satisfied: 1) the limitations
period must have been tolled at least until plaintiff filed his
amended complaint; or 2) the amended complaint must relate back to the
date of filing the original complaint pursuant to Rule 15(c). A review
of the relevant law shows that the limitations period was in fact
tolled up to the filing of the amended complaint, such that the action
against the individual correctional officers is timely.2
A. Tolling.
“Not only the length of the limitations period, but also
‘closely related questions of tolling and application,’ are determined
by state law in §1983 actions.” Varnell v. Dora Consol. School Dist.,
756 F.3d 1208, 1212 (10th Cir. 2014). Because Congress decided to
defer to the states’ judgment as to the proper period of limitation,
and
because
the
limitation
period
is
interrelated
with
tolling
provisions, courts should not unravel state limitations rules unless
their full application would defeat the goals of the federal statute
2
In view of this finding the court need not address the relation
back issue under Rule 15(c). See Garrett v. Fleming, 362 F.3d 692
(10th Cir. 2004) (suing John Doe defendant was not a “mistake”
concerning the proper party’s identity); Krupski v. Costa Cruciere,
560 U.S. 539 (2010) (relation back provision depends on what the party
to be added knew or should have known, not on plaintiff’s knowledge).
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at issue. Hardin, 490 U.S. at 538.
Kansas has a statutory tolling provision for persons under legal
disability, including prisoners. K.S.A. § 60-515(a). Under this rule,
prisoners are generally considered to be under a legal disability and
are
entitled
disability
to
is
bring
removed
their
action
(i.e.,
after
within
one
release).
year
But
after
“if
a
the
person
imprisoned for any term has access to the court for purposes of
bringing an action, such person shall not be deemed to be under legal
disability.” K.S.A. § 60-515(a).
Plaintiff
specifically
concedes
he
was
not
under
a
legal
disability and was not denied access to the courts for purposes of
bringing an action. Doc. 63 at 11. Rather, he claims he is entitled
to equitable tolling of the limitations period based on the court’s
delay in deciding his motions to proceed in forma pauperis and for
appointment of counsel. Plaintiff argues that if this delay is
excluded, it would put the limitations period “as ending in September
of 2014, a date by which the Individual Defendants were most assuredly
aware of this lawsuit....” Doc. 63 at 13. Plaintiff also points out
that he exhausted administrative remedies before filing suit and
further asserts that he attempted unsuccessfully in those proceedings
to obtain the officers’ identities. He says that after he filed suit
“he could do nothing but wait for the Court to rule” on his motions,
and, moreover, that when the motion to proceed IFP was granted the
court “continued to tie his hands by staying all discovery until
completion of the Martinez report.” Doc. 63 at 13.
“In Kansas, a trial court cannot toll a limitations period; only
the legislature, by statute, may do so.” Bell v. City of Topeka, 279
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Fed.Appx. 689, 2008 WL 2192152 (10th Cir. 2008) (citations omitted).
Because the Kansas legislature has specifically provided a tolling
rule for prisoners in K.S.A. § 60-515(a), a prisoner is generally
entitled to tolling “only if he or she is denied access to the
courts,” which plaintiff does not claim. See McClain v. Roberts, 304
P.3d 364 (Table), 2013 WL 3970215, *3 (Kan.App. 2013).
Despite this seemingly hard and fast rule, Kansas courts have
recognized equitable tolling and the related concepts of equitable
estoppel and the “unique circumstances doctrine.”3 See e.g.,
Harris
v. Neill, 216 P.3d 191 (Table), 2009 WL 3082642, *6 (2009) (citing
rule of equitable tolling but finding it did not apply); Finley v.
Estate of DeGrazio, 285 Kan. 202, 170 P.3d 407 (recognizing unique
circumstances doctrine); Nguyen v. IBP, Inc., 266 Kan. 580, 587, 972
P.2d 747 (1999) (stating court has applied unique circumstances
doctrine where an untimely filing results from a non-party error);
Slayden v. Sixta, 250 Kan. 23, 825 P.2d 119 (1992) (applying unique
circumstances doctrine to extend the period for service of summons
because of error by clerk).
The unique circumstances doctrine likely would provide plaintiff
some relief from the court’s delay in ruling on his IFP motion, but
the applicable remedy would not extend the limitations period. It
3
Equitable tolling is a long-established feature of the common
law. As a general matter, equitable tolling pauses the running of a
statute of limitations when a litigant has pursued his rights
diligently but some extraordinary circumstance prevents him from
bringing a timely action. Lozano v. Montoya Alvarez, 134 S.Ct. 1224,
1231-32 (2014). In federal statutes of limitation, is it presumed that
Congress incorporated such background principles into the law unless
it would be inconsistent with the relevant statute. Lozano, 134 S.Ct.
at 1232.
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would only excuse the delay in service of the original complaint on
defendants Cline and Roberts.4 The period for service was effectively
extended by Judge Crow when he directed the marshals on February 25,
2014 to serve defendants with the original complaint. Doc. 12. See
Keller v. United States, 444 Fed.Appx. 909, 910, 2011 WL 5008422, *3
(7th Cir. 2011)(the district judge “implicitly approved an extension
of time under Rule 4(m) when he ordered service on the government”).
The effect of this implicit extension was to make service of the
original complaint on defendants Cline and Roberts (on March 5 and 6,
2014) timely under both Rule 4 and Kansas law. See Slayden, 250 Kan.
at 30-31 (40-day delay in serving summons caused by clerk should not
be counted against plaintiff; service was therefore timely under the
90-day limit of K.S.A. § 60-203); Fed. R. Civ. P. 4, comment to 1993
amendment to Rule 4(m)(“Relief may be justified ... if the applicable
statute of limitations would bar the refiled action”). But the
individual correctional officers were not named in and were never
served with the original complaint. The fact that the allowable period
for service of that complaint was effectively extended does not assist
plaintiff insofar as his claims against the individual correctional
officers are concerned.
4
The delay in the IFP ruling caused plaintiff to be unable to
have his original complaint served within the 120-day period allowed
by Fed. R. Civ. P. 4(m). Under both the unique circumstances doctrine
of Slayden and Rule 4(m), the time limit for service of a complaint
can be extended in such circumstances. And the court’s delay in
granting the IFP motion clearly constituted “good cause” for
plaintiff’s failure to serve the original complaint within the 120-day
period. See Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010)
(“Because the delay caused by the court’s failure to authorize the
issuance and service of process is beyond the control of an in forma
pauperis plaintiff, such failure constitutes good cause requiring the
120-day period to be extended.”).
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Exhaustion of administrative remedies. Plaintiff’s complaint
does show periods in which tolling would apply -- namely, during his
pursuit of administrative remedies. Under Kansas common law, “a
plaintiff is entitled to tolling of the statute of limitations during
the
period
he
exhausted
his
administrative
remedies.”
Bloom
v.
McPherson, 346 Fed.Appx. 368 (10th Cir. 2009) (citing Wagher v. Guy’s
Foods, Inc., 256 Kan. 300, 885 P.2d 1197 (1994)). This rule applies
when a plaintiff is precluded from pursuing judicial remedies until
after exhaustion of the administrative remedies. See Wagher, 256 Kan.
at 312.
Plaintiff was required by 42 U.S.C. § 1997e to exhaust available
administrative
remedies
before
filing
his
§1983
claims,
so
the
limitations period was tolled by the amount of time it took him to
pursue those remedies. Under Kansas law, the available remedies
included filing a grievance (K.A.R. 44-15-101a(d)(1)(B)), filing a
claim for personal injury (K.A.R. 44-16-104a), and filing a claim with
the Kansas legislative Joint Committee on Special Claims against the
State. See K.A.R. §44-16-104a(c) (recognizing claim to legislative
joint committee).
Plaintiff’s amended complaint alleges that he submitted a
grievance on December 13, 2011, and that it was denied as of February
28, 2012. Doc. 53 at 8; Doc. 1-1 at 2. The grievance procedure thus
consumed a total of 77 days. Excluding this delay would extend the end
of the limitations period from November 4, 2013 to January 20, 2014.
Plaintiff’s amended complaint also alleges that he requested
notarization of a personal injury claim form (IMP 01-118) at HCF on
December 25, 2011, and that the claim was subsequently denied by the
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warden and by the Secretary of Corrections on February 15, 2012. Doc.
53 at 9. Because this procedure overlapped with plaintiff’s grievance
procedure (above), on balance it added no time to the administrative
process and does not result in extension of the limitations period.
Plaintiff also submitted a claim to the Kansas legislature’s
Joint Committee on Special Claims Against the State.
Although this
procedure is apparently optional under Kansas law and might not result
in tolling in other contexts, 42 U.S.C. § 1997e requires exhaustion
of “such administrative remedies as are available....” Because federal
law
governing
§1983
claims
required
plaintiff
to
exhaust
this
procedure, the period of delay resulting from it will be excluded from
the limitations period. Cf. Wagher, 256 Kan. at 311-12 (statute tolled
because plaintiff was precluded from bringing suit by exhaustion
requirement). Plaintiff allegedly presented the facts in support of
his legislative claim on May 31, 2012, and the claim was dismissed
without prejudice by the joint committee on November 15, 2012, a total
of 168 days. Excluding this period of delay means the end of the
limitations period was extended from January 20, 2014 to July 7, 2014.
On
June
2,
2014,
within
the
foregoing
limitation
period,
plaintiff moved for leave to amend his complaint to name the four
correctional officers and to allow the clerk to issue summonses
directed to them. Doc. 35 at 1. That motion was not granted until
August 19, 2014, after the limitations period expired. Plaintiff’s
newly appointed counsel thereafter filed an amended complaint within
a time limit set by the court. Under these circumstances, the delay
between plaintiff’s request to amend the complaint and his filing of
the amended complaint will not be counted against plaintiff. Plaintiff
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timely requested leave to identify and serve the four correctional
officers. He was unable to do so within the limitations period as a
result of delay attributable to the court. See Slayden, 250 Kan. at
30
(delay
attributable
to
court
clerk
will
not
be
charged
to
plaintiff). In sum, the court finds that plaintiff’s claims in the
amended complaint against the individual correctional officers are not
barred by the applicable statute of limitations.
2. Failure to state a claim.
Defendants also contend the amended complaint fails to state a
claim for relief against any of the individual correctional officers
because it merely states collective allegations and fails to plausibly
show how each defendant individually violated plaintiff’s rights. Doc.
59 at 6-7. Plaintiff responds that the amended complaint combined with
the Martinez report provides fair notice, but alternatively argues
that plaintiff should be allowed to amend his complaint if it is found
to be lacking. Doc. 63 at 17-18.
The standards governing a motion to dismiss under Rule 12(b)(6)
for failure to state a claim are well known. The complaint must
contain enough allegations of fact to state a claim to relief that is
plausible on its face. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th
Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955,
1974
(2007)).
All
well-pleaded
facts
and
the
reasonable
inferences derived from those facts are viewed in the light most
favorable to plaintiff. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th
Cir.2008). Conclusory allegations, however, have no bearing on the
court's consideration. Shero v. City of Grove, Okla., 510 F.3d 1196,
1200 (10th Cir.2007).
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Section 1983 of Title 42 provides a remedy against a defendant
who acts under color of state law to deprive a plaintiff of a
constitutional right. The amended complaint alleges that defendants
deprived plaintiff of federally-protected rights under the Eighth and
Fourteenth Amendments, including by being deliberately indifferent to
his safety in failing to protect him from assaults by other inmates.
Doc. 53 at 10. As the motion to dismiss points out, however, the
amended complaint does not allege any facts to show the personal
involvement of any of the individual defendants in the incident. It
merely refers collectively to “defendants” throughout and does not
specify actions taken by any individual defendant. (E.g., “Defendants
allowed two inmates to enter”; “Defendants saw this and opened the
doors”; “the second inmate yelled to Defendants”, et cet.).
Section 1983 imposes liability for a defendant’s own actions.
Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011). “In order for
liability
to
arise
under
§1983,
a
defendant’s
direct
personal
responsibility for the claimed deprivation of a constitutional right
must be established.” Trujillo v. Williams, 465 F.3d 1210, 1227 (10th
Cir. 2006). Plaintiff’s collective allegations against “defendants”
fail to show the basis for a claim against any individual defendant.
See
e.g.,
Grayson
v.
Kansas,
2007
WL
1624630
(June
4,
2007)
(“plaintiff’s generic collective allegations are inconsistent with the
individualized
allegations
necessary
to
allege
each
defendant’s
personal participation”).
Because plaintiff may still be able to cure this deficiency, the
court will grant plaintiff’s request for leave to again amend the
complaint. See Fed. R. Civ. P. 15(a)(2) (leave to amend should be
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freely given when justice so requires).
III. Conclusion.
The motion of defendants Fears, Mitchell, Jones and Baker to
dismiss (Doc. 58) is granted for failure to state a claim upon which
relief can be granted. Plaintiff is granted until April 10, 2015, to
file an amended complaint. If no amended complaint is filed by that
date, a judgment of dismissal will be entered.
IT IS SO ORDERED.
Dated this 19th day of March 2015, at Wichita, Kansas.
s/Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE
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