Juett v. Greenup County Kentucky Government et al

Filing 5

MEMORANDUM OPINION & ORDER ; pla James Kent Juett's complaint is DISMISSED WITH PREJUDICE and this case is STRICKEN from docket; court will enter an appropriate judgment. Signed by Judge Henry R. Wilhoit, Jr on 7/25/11.(SMT)cc: COR, Juett via USMail

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION AT ASHLAND

JAMES KENT JUETT,
Plaintiff,
v.
GREENUP COUNTY, KENTUCKY
GOVERNMENT, et al.,

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Civil Action No. 11-00057-HRW

MEMORANDUM OPINION
AND ORDER

Defendants.

***** ***** ***** *****
PlaintiffJames Kent Juett, who lists his address as 2700 Bruce Drive, Ashland,
Kentucky, has filed a pro se 42 U.S.C. § 1983 civil rights Complaint asserting claims
against the "Greenup County, Kentucky Government," the Greenup County Detention
Center ("the GCDC"); and Dallas Prince, former Jailer of the GCDC. Juett has been
granted pauper status. [D. E. No.4].
Under 28 U.S.C. § 1915(e), a district court must dismiss an in forma pauperis
action if it fails to state a claim upon which relief can be granted, or if it lacks an
arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v.

Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunkv. City ofStrongsville, 99 F.3d 194,
197 (6th Cir. 1996). Because Juett's claims are time-barred and equitable tolling is not
warranted, the Court will dismiss his Complaint with prejudice.

ALLEGATIONS OF THE COMPLAINT

Juett states that on June 20,2009, when confined in the GCDC, fifteen to twenty
men physically attacked him over a four to five-hour period. 1 He states that the men
hit his testicles numerous times, broke two of his vertebrae, and broke two ofhis ribs.
Juett states that he may have sustained a concussion. He was taken to a local hospital
for treatment. Ten days later, Juett was discovered on the floor ofthe shower and was
again taken to the local hospital. Juett states that hospital staff told him that he had
suffered a seizure, but Juett questions that conclusion.
The pre-printed § 1983 Complaint Form which Juett submitted asks prisonerplaintiffs confined in local jails to explain their failure to file an administrative
grievance concerning their claims. Juett responded as follows:
I am still on probation and really do not want to cause waves and have
this happen all over. The attorney I had said taking care of this was the
least of my worries. Since he is an attorney I assumed he knew the
statutes oflimitations. He just for some reason did not keep good records
or just forgot about the deadline. I just recently found out from another
attorney I have two years to file a federal civil case under the 1983 or
Bivens action.
[D. E. No.2, p. 6, § IV (C)(5)].
Juett seeks unspecified monetary damages for his past and future medical
expenses and for his lost wages. Juett stated that "I want to make sure this and the

Juett does not specify ifhis alleged attackers were Gene employees or Gene inmates.
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other violations an attorney told me about do not happen to anyone else." [Id., p. 8].

DISCUSSION
Juett's claims are barred by the applicable statute of limitations. The time
limitation for bringing a § 1983 action is governed by the limitation period for personal
injury cases in the state in which the cause of action arose. Wallace v. Kato, 549 U.S.
384, 387 (2007). The alleged event occurred in Kentucky, which has a one-year statute
of limitations for personal injuries, not a two-year period. K.R.S. § 413.140(1); Cox
v. Treadway, 75 F.3d 230,240 (6th Cir. 1996); Collardv. Kentucky Board o/Nursing,
896 F.2d 179, 182 (6th Cir. 1990)) (noting that "§ 1983 actions in Kentucky are limited
by the one-year statute oflimitations found in § 413.140(1)(a)").
The statute of limitations accrues when a plaintiff knew or should have known
ofthe injury that forms the basis ofthe claim alleged in the complaint. Ruffv. Runyon,
258 F.3d 498, 500-01(6th Cir. 2001); Collyer v. Darling, 98 F.3d 211,220 (6th Cir.
1996). Juett alleges that he was attacked on June 20,2009, that his ribs and vertebrae
were fractured, and that he possibly sustained a concussion. Therefore, Juett either
knew or should have known that his claims accrued on June 20, 2009. The one-year
limitation period expired on June 20, 2010, but Juett did not file his Complaint until

June 20, 2011, two years after his claim accrued and an entire year after the one-year
limitations period had expired on June 20,2010.
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Juett acknowledges the statute of limitations issue, which is obvious from the
Complaint. A district court may dismiss a complaint as time-barred when a statute of
limitations defect is obvious from the face of the complaint. Castillo v. Grogan, 52
Fed. App'x. 750, 751 (6thCir.2002);Alstonv. Tennessee Dept. ofCorr., 28F. App'x.
475,476 (6 th Cir. 2002); Paige v. Pandya, No. 00-1325, 2000 WL 1828653, at *1 (6 th
Cir. Dec. 5,2000) )(citing Pino v. Ryan, 49 F.3d 51, 53-54 (2d Cir. 1995)).
Juett blames the missed one-year limitations period on his prior attorney, but he
does not identify that attorney by name, does not allege when he discussed his possible
civil rights claim with the unidentified attorney, and does not allege that he specifically
hired the unidentified attorney to represent him in this matter. 2 But even assuming that
Juett's claims are true and that the attorney failed to file a § 1983 action on his behalf,
Juett essentially asks the Court to relieve him of the attorney's alleged oversight and
toll the one-year statute of limitations.
Equitable tolling should be used sparingly. Cook v. Stegall, 295 F.3d 517, 521
(6th Cir. 2002); Graham-Humphreys v. Memphis Brooks Museum ofArt, Inc., 209 F.3d
552, 560 (6th Cir. 2000). "Typically, equitable tolling applies only when a litigant's
failure to meet a legally-mandated deadline unavoidably arose from circumstances

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Indeed, the first attorney to whom Juett refers could have been engaged to represent him only
in criminal matters.
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beyond that litigant's control." Id. at 560-61.
The Supreme Court has allowed equitable tolling in situations "where the
claimant has actively pursued his judicial remedies by filing a defective pleading
during the statutory period, or where the complainant has been induced or tricked by
his adversary's misconduct into allowing the filing deadline to pass." Irwin v. Dep't of
Veterans Affairs, 498 U.S. 89,96 (1990). However, "[w]e have generally been much

less forgiving ... where the claimant failed to exercise due diligence in preserving his
legal rights." Id.; cf Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 ("One
who fails to act diligently cannot invoke equitable principles to excuse that lack of
diligence."). To determine whether the statute oflimitations should be equitably tolled,
a district court must consider the following five factors:
(1) the petitioner's lack of notice of the filing requirement; (2) the
petitioner's lack of constructive knowledge ofthe filing requirement; (3)
diligence in pursuing one's rights; (4) absence of prejudice to the
respondent; and (5) the petitioner's reasonableness in remaining ignorant
of the legal requirement for filing his claim.
Jurado v. Burt, 337 F.3d 638,6443 (6th Cir. 2003); Dunlap v. United States, 250 F.3d

1001,1008 (6th Cir.2001).
Juett's construed tolling request fails under the first factor (lack ofactual notice)
because "ignorance of the law, even for an incarcerated pro se petitioner, generally
does not excuse [late] filing." Fisher v. Johnson, 174 F.3d 710, 714-15 (5th Cir.
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1999); see also United States v. Baker, 197 F.3d 211, 218 (6th Cir. 1999); Rose v.
Dole, 945 F.2d 1331,1335 (6th Cir. 1991).
Because Juett alleges that an attorney was representing him and was responsible
for filing a timely § 1983 lawsuit on his behalf, the Court collectively addresses the
second factor (lack of constructive notice), the third factor (diligence in pursuing his
rights), and the fifth factor (reasonableness in remaining ignorant of the filing
deadline). Juett's construed request to toll the one-year limitations period, based on
his former attorney's alleged oversight, is non-persuasive because attorney error,
miscalculations, inadequate research, or other mistakes do not constitute extraordinary
circumstances which justify tolling a statue of limitations. Jurado v. Burt, 337 F.3d
638,644-45 (6th Cir. 2003); Merrittv. Blaine, 326 F.3d 157, 169 (3d Cir. 2003). This
is so because "the attorney is the petitioner's agent when acting, or failing to act, in
furtherance of the litigation, and the petitioner must bear the risk of attorney error."
Coleman v. Thompson, 501 U.S. 722, 753 (1991).
The Supreme Court has refused to equitably toll the statute oflimitations based
on an attorney's mistake in federal habeas corpus proceedings, stating as follows:
Lawrence argues that his counsel's mistake in miscalculating the
limitations period entitles him to equitable tolling. If credited, this
argument would essentially equitably toll limitations periods for every
person whose attorney missed a deadline. Attorney miscalculation is
simply not sufficient to warrant equitable tolling, particularly in the
postconviction context where prisoners have no constitutional right
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to counsel.
Lawrence v. Florida, 549 U.S. 327, 336-37(2007) (emphasis added). There is no

reason to conclude differently in this case.
Again assuming that Juett's attorney was in fact engaged to represent him in this
civil matter and that he or she failed to file suit, Juett's remedy is to file an action
against that attorney. "[T]he remedy for negligence by a party's lawyer is generally a
legal malpractice suit or an ineffective assistance of counsel claim, not forcing the
opposing party to defend against a stale claim." Whalen v. Randle, 37 F. App'x. 113,
120 (6th Cir. 2002) (citing Taliani v. Chrans, 189 F.3d 597,598 (7th Cir.1999».
As for the fourth factor (absence of prejudice to the respondent), "delay alone
is not a sufficient basis for establishing prejudice ... Rather, it must be shown that delay
will 'result in the loss ofevidence, create increased difficulties ofdiscovery, or provide
greater opportunity for fraud and collusion.'" INVSTFin. Group, Inc. v. Chern-Nuclear
Sys., 815 F.2d 391,398 (6th Cir. 1987) (citations omitted).

In this case, however, two years have passed since Juett was allegedly assaulted.
The passage of time can complicate locating evidence and witnesses and cause
memories of the event to fade. The defendants in this action, if required to respond,
might need statements from (1) employees no longer employed by the GCnc or the
Greenup County Fiscal Court; (2) other witnesses who may have relocated elsewhere;
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and (3) inmates, long ago transferred or released and no longer in the GCDC' s custody,
who may have witnessed or been involved in the alleged attack on Juett. Further,
according to Juett's Complaint, he filed no grievances at the GCDC about the alleged
attack. Doing so might have alerted GCDC and/or county officials of his claim at that

time, and the need to investigate the alleged attack at that time.
Considering these issues, and the absence of excusable neglect for missing the
one-year filing deadline, equitable tolling of the one-year statute of limitations is
unwarranted. In summary, Juett's claims are barred by the applicable statute of
limitations set forth in K.R.S. § 413.140(1) and his Complaint will be dismissed.
CONCLUSION
Accordingly, IT IS ORDERED that PlaintiffJames Kent Juett's Complaint, [R.
2], is DISMISSED WITH PREJUDICE and this case is STRICKEN from Court's
active docket. The Court will enter an appropriate Judgment.
This 25 th day of July, 2011.

SIgned By

HInB. Mhoit Jr.

United States DIstnct JtIjge

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