Jamerson (ID 74123) v. Heimgartner et al

Filing 14

MEMORANDUM AND ORDER ENTERED: Plaintiff's Motion to Alter or Amend Complaint 11 is denied. This action is dismissed for failure to state a claim. Signed by U.S. Senior District Judge Sam A. Crow on 04/25/18. Mailed to pro se party James Lee Jamerson by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES LEE JAMERSON,
Plaintiff,
v.

CASE NO. 17-3205-SAC

JAMES HEIMGARTNER, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Response (Doc. 13) to the Court’s
February 7, 2018 Memorandum and Order and Order to Show Cause (“MOSC”) (Doc. 12). The
MOSC ordered Plaintiff to show cause why Plaintiff’s Complaint (Doc. 1) should not be
dismissed for the reasons set forth in the MOSC. Plaintiff has failed to show good cause and his
Complaint is dismissed for failure to state a claim.
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Although
Plaintiff is currently incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas
(“EDCF”), the events giving rise to his Complaint took place during his incarceration at EDCF
and the Lansing Correctional Facility in Lansing, Kansas (“LCF”).
Plaintiff alleges in Count I of his Complaint that Defendants violated his Eighth
Amendment right to be free from cruel and unusual punishment when they failed to protect him
from an assault by another inmate occurring in June, 2010. Plaintiff alleges as Count II that he
was subjected to retaliation in the form of long term segregation because prison official claimed
Plaintiff was introducing dangerous contraband within the correctional facility without any
evidence to prove the allegations. As Count III, Plaintiff alleges that he was subjected to a false
conviction as a result of the disciplinary action regarding dangerous contraband, violating his
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Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff filed a “Motion
to Alter or Amend Complaint” (Doc. 11), seeking to add a claim for the tort of outrage as
Count IV of his Complaint.

The claim is based on Defendants’ alleged falsification of

documents as set forth in the Complaint. Plaintiff seeks compensatory, punitive, and exemplary
damages.
The Court found in the MOSC that it plainly appears from the face of the Complaint that
Plaintiff’s claims are subject to dismissal as barred by the applicable two-year statute of
limitations. Plaintiff filed his Complaint on November 22, 2017. Plaintiff’s alleged failure to
protect and segregation review board hearing occurred in June 2010, and his subsequent
disciplinary hearing occurred in April 2014. It thus appears that any events or acts of Defendants
taken in connection with Plaintiff’s claims took place more than two years prior to the filing of
Plaintiff’s Complaint and are time-barred. See Fratus v. Deland, 49 F.3d 673, 674-75 (10th Cir.
1995) (district court may consider affirmative defenses sua sponte when the defense is obvious
from the face of the complaint and no further factual record is required to be developed).
In his response, Plaintiff argues that although his “illegal segregation started in June
2010, it was not until June 6, 2013, that the Plaintiff had actual proof of the fact that Defendants
placed falsified documents in his file in an unprofessional vain attempt to hold the Plaintiff on 23
hour lock down for five years and three months for the alleged movement of contraband, and
failure to provide information to prison officials.” (Doc. 13, at 1.) Thus, Plaintiff argues that the
statute of limitations should be tolled until June 6, 2013. Id. at 2. Plaintiff argues that when he
had the documentation on June 6, 2013, he began to exhaust his administrative remedies and
brought a state habeas action. Plaintiff then argues that the statute of limitations should be tolled
during the pendency of his state habeas action. Plaintiff argues that a win in the Kansas Supreme

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Court was a prerequisite to bringing his federal action because “[u]ntil Plaintiff set precedent
Kansas inmates had no liberty interest in remaining free from administrative segregation.” Id.
Plaintiff argues that he is actually challenging two disciplinary reports and one was not
overturned on direct appeal until June 2015. Plaintiff alleges that the case was remanded back to
the EDCF disciplinary board for a fair rehearing. Plaintiff alleges that the rehearing was held at
the end of August 2015. Plaintiff alleges that “at this point” his mental health was in a “bad
place” and he is therefore entitled to tolling for this disciplinary report. Plaintiff alleges that the
other disciplinary report was reversed in October of 2016 and is therefore within the two year
statute of limitations.
The Court finds that Plaintiff has failed to show good cause why his Complaint should
not be dismissed for the reasons set forth in the MOSC. In Count I of his Complaint, Plaintiff
alleges that Defendants violated his Eighth Amendment right to be free from cruel and unusual
punishment when they failed to protect him from an assault by another inmate occurring in June,
2010. Nothing in Plaintiff’s response suggests that he was not aware of the assault on the day it
occurred. This claim is clearly barred by the statute of limitations.
Even if Plaintiff could successfully argue for equitable tolling regarding his remaining
claims, Plaintiff has failed to state a plausible claim for relief. Plaintiff seeks money damages for
retaliation and for compensation for his time spent in segregation. Plaintiff alleges that after his
state habeas action was remanded in June 2015, KDOC and EDCF dismissed the disciplinary
action against Plaintiff, restored all of his good time, and gave Plaintiff his money back. They
did not compensate Plaintiff for the time he spent in segregation or the time he spent on
privileged restriction. Plaintiff’s request for compensatory damages is barred by 42 U.S.C.
§ 1997e(e), because Plaintiff has failed to allege a physical injury. Section 1997e(e) provides in

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pertinent part that “[n]o Federal civil action may be brought by a prisoner confined in a jail,
prison, or other correctional facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury.” 42 U.S.C. § 1997e(e).
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion to Alter or
Amend Complaint (Doc. 11) is denied.
IT IS FURTHER ORDERED this action is dismissed for failure to state a claim.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 25th day of April, 2018.

s/ Sam A. Crow
SAM A. CROW
Senior U. S. District Judge

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