Norris v. Baker et al

Filing 3

MEMORANDUM OPINION & ORDER: (1) Plf Norris' Fifth and Eighth Amendment constitutional claims asserted against the defendants under 28 USC 1331 are DISMISSED WITH PREJUDICE. (2) Norris's construed FTCA claims are DISMISSED WITHOUT PREJUDICE to his right to file an FTCA administrative claim (as to alleged events of April 27, 2013) with the BOP on or before April 27, 2015. (3) Norris's Motion to Appoint Counsel 2 is DENIED as MOOT. (4) Judgment will be entered contemporaneously with this Memorandum Opinion and Order in favor of the named defendants. Signed by Judge Henry R. Wilhoit, Jr on 4/17/15.(KSS)cc: COR, Norris (via US Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND

LARRY NORRIS,
Plaintiff,

v.
LIEUTENANT BAKER, eta!.,
Defendants.

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Civil Action No. 15-CV-20-HRW

MEMORANDUM OPINION
ANDORDER

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Proceeding without counsel, Plaintiff Larry Norris 1 has filed a pro se civil
rights complaint asserting claims under 28 U.S. C. § 13 31, pursuant to the doctrine
announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971). [D. E. No. 1] Norris alleges that in April 2013, while confined by the
BOP in the Federal Correctional Institution ("FCI")-Ashland, located in Ashland,
Kentucky, the defendants2 violated his various constitutional rights. Norris has
paid the $400.00 filing fee. [D. E. No. 1-8]
1

Norris lists his address as 2200 Garfield Avenue, Apt. 703, Terre Haute, Indiana, 47804.
According to the Bureau of Prisons' ("BOP") website, Norris, BOP Register No. 08284-028, was
released from federal custody on April 2, 2015. See http://www.bop.gov/inmateloc/ (last visited
on April 7, 20 15).
2

The six defendants, all of whom Norris identifies as FCI-Ashland officials, are: (1) Lieutenant
Baker; (2) Lieutenant Messer; (3) Barry Frazee, Nurse; (4) Correctional Officer Lopez; (5)
Correctional Officer Adkins; and (6) Correctional Officer Stevens.

Norris's complaint is dated March 19, 2015, and on that date, Norris was in
the BOP's custody. The envelope in which Norris mailed his complaint was postmarked March 30, 2015, see D. E. No. 1-1, p. 9, and on that date, Norris was in the
BOP's custody. The Clerk of the Court received and filed the complaint on April
2, 2015, which, as noted, was the same date on which Norris was released from the
BOP's custody. Because Norris was a prisoner when he signed and placed his
complaint in the prison's mailing system, and because Norris asserts claims against
government officials, the Court screens Norris's Bivens complaint pursuant to 28
U.S.C. § 1915A. 3 That statute requires a district court to dismiss any claim that is
frivolous or malicious, fails to state a claim upon which relief may be granted, or
seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

§ 1915A(b); Grinter v. Knight, 532 F.3d 567, 572 (6th Cir. 2008); Wingo v. Tenn
Dept. of Corrections, 499 F. App'x 453, 454 (6th Cir. 2012) For the reasons set
forth below, the Court will dismiss Norris's complaint because his claims are
barred by the applicable statute of limitations and are thus legally frivolous.
ALLEGATIONS OF THE COMPLAINT

The following is a summary of Norris's factual allegations.

On an

unspecified date, Norris he notified the Department of Justice ("DOJ") that in
3

Because Norris is proceeding without an attorney, the Comt liberally construes his claims and
accepts his factual allegations as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)
2

September 2012, Lieutenant Kenser of FCI-Ashland had physically attacked him,
and that on April 27, 2013, Lieutenant Baker ofFCI-Ashland physically assaulted
him in a "rage of anger" without provocation, in response to the fact that he had
reported Kenser's alleged assault on him to the DOJ. [D. E. No. 1, p. 13; pp. 1617] Norris alleges that Lieutenant Baker assaulted him in his (Lieutenant Baker's)
private office, " ... well out of both the hearing and sight of anyone else at the
institution," id., p. 13, and according to Norris, the alleged assault" ... caused great
physical and mental harm to an already fragile Plaintiff as evidenced by his welldocumented medical history." [Id., p. 14] Norris claims that Lieutenant Baker
also prevented him from filing a legitimate grievance and subjected him to mental
torture and emotional distress. [Id., p. 15] Norris fmiher alleges that on April 27,
2013, Lieutenant Messer failed to protect him from harm by merely standing by,
allowing Lieutenant Baker to physically attack him, failing to call or assistance,
and failing to intercede in the attack on his behalf. [Id., p. 13; pp. 16-17]
Norris next assetis that immediately after the attack, he was placed in FCIAshland's Special Housing Unit; that he suffered a heart attack as a result of the
alleged attack by Lieutenant Baker; and that Nurse Barry Frazee intentionally
wrote in his medical records that he (Norris) was not suffering fi·om a heart attack.

[Id., pp. 14-15] Norris claims by intentionally entering such incorrect information

3

into his medical records, Nurse Barry Frazee was modifying and/or falsifying his
(Norris's) medical records "in an attempt to cover up or hide the events of the
attack and the results of the attack." [Id., p. 15]
While he was confined in the Special Housing Unit, Officers Lopez, Adkins,
and Stevens allegedly subjected Norris to "taunts and jeers," regularly searched his
cell, and "took" his documentation about the attack. [Id., p. 14]

Norris further

contends that these three defendants interfered with his effmis to file
administrative grievances and/or the delivery of his mail in an effmi to conceal the
actions of Lieutenant Baker. [Id.] Norris alleges that " ... any attempts Plaintiff
made to grieve the ordeal were never sent by actual U.S. Mail or institutional mail
in an attempt to follow the grievance process as they were taken by the three
officers." [Id.] Norris further asserts that Lopez, Adkins, and Stevens, denied him
access to necessary medical care; denied him access to necessary grievance forms;
placed him in isolation and caused him to suffer "mental torture," physically and
mentally abused him; failed to report the attack on him (by Lieutenant Baker) to
their immediate supervisor and/or the Warden of FCI-Ashland; and failed to
protect his constitutional and procedural rights. [Id., pp. 17-18]
Finally, Norris claims that between July 30, 2013, and October 4, 2013, he
either filed or attempted to file a series of administrative grievances complaining

4

about not only the specific alleged events at FCI-Ashland listed above, but also
about other various aspects of his confinement at FCI-Ashland, including but not
limited to the alleged confiscation of legal documents; harassment, verbal insults,
and intimidation by prison officials; the alleged denial of legal research material;
the alleged denial of air conditioning; and the alleged interference with the delivery
of his legal mail.

[ld., pp. 4-6 (listing grievances)]

Norris asse1is that the six FCI-Ashland defendants acted in concert with each
other and conspired to subject him to excessive force; that they were "grossly
negligent," id., at p. 15, and that their actions violated his rights guaranteed under
both the Eighth Amendment of the U.S. Constitution, which prohibits cruel and
unusual punishment and the Fifth Amendment of the U.S. Constitution, which
guarantees due process of law.

Norris demands in excess of $7 million in

compensatory damages from the named defendants. [ld., pp. 19-20]
DISCUSSION
1. Bivens Constitutional Claims

Norris's Bivens claims against the six FCI-Ashland defendants must be
dismissed because they are barred by the applicable one-year statute of limitations.
As a prisoner assetiing Bivens claims against individual defendants for violation of
his Fifth and Eighth Amendment rights, Norris must allege that the defendants
showed "deliberate indifference" to his "serious medical needs." Wilson v. Seiter,
5

501 U.S. 294, 297 (1991) Because neither 42 U.S.C. § 1983 nor the judiciallycrafted remedy under Bivens include a statute of limitations, federal comis apply
the most analogous statute of limitations from the state where the events giving rise
to the cause of action occurred. Wilson v. Garcia, 471 U.S. 261, 268-71 (1985)
The events at issue occurred in Kentucky, which means that Kentucky's one-year
statute of limitations for asserting personal injuries applies. KRS § 413.140(1)(a);

Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003).
In Bivens actions, federal law supplies its own rule of claim accrual. Collyer

v. Darling, 98 F.3d 211, 220 (6th Cir. 1996) (citing Sevier v. Turner, 742 F.2d 262,
272 (6th Cir. 1984)). A claim accrues and the statute of limitations begins to run
when a plaintiff knows, or has reason to know through the exercise of reasonable
diligence, of the injury providing the basis for the claim. Kelly v Burks, 415 F.3d
558, 561 (6th Cir. 2005) A plaintiff need not know the full extent of his injuries
before his claim accrues. Instead, he need only be sufficiently aware of the injury
to put him on inquiry notice. Friedman v. Estate of Presser, 929 F.2d 1151, 1159
(6th Cir. 1991)
Federal law also requires prisoners to exhaust their administrative remedies
prior to filing suit. 42 U.S.C. § 1997e(a)

The BOP's administrative remedy

process is set forth in 28 C.F.R. §§ 524.10-19, and absent an unreasonable delay or

6

extension, the BOP grievance process should ordinarily take no more than 140
days to complete after the prisoner commences the formal grievance process.

Cuco v. Federal Medical Center-Lexington, No. 05-CV-232-KSF, 2006 WL
1635668, at *26 (E. D. Ky. June 9, 2006).

During that time, the statute of

limitations is tolled, provided the prisoner acts in a timely and diligent manner.

Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000)
In this case, Norris alleges that FCI-Ashland defendants violated his Eighth
Amendment rights on April 27, 2013. He further alleges that between July 30,
2013, and October 4, 2013, he filed numerous grievances concerning the alleged
events of April 27, 2013. 4 He further claims that in violation of his Fifth
Amendment right to due process of law, the defendants impeded his ability to
administratively exhaust his claims, alleging that his grievances were either denied
or "lost."

[D. E. No. 1, p. 4]

Accepting as true Norris' allegation that the

defendants delayed or even completely prevented him from complying with the
BOP's administrative remedy process, and liberally allowing one hundred forty
(140) more days for the BOP's administrative remedy process to run its course as
to the very last grievance which Norris filed on October 4, 2013 [No. 752426],

4

Norris alleges that on October 4, 2013, he filed Administrative Remedy Number 752426,
concerning the alleged "loss" of 152 legal documents on June 3, 2013. [Id.] It is unclear
whether this alleged event was related to the alleged assault of April 27, 2013. Between the
dates of July 31,2013, and August 2, 2013, Norris appears to have filed administrative remedies
which specifically relate to the alleged events of April 27, 2013. !d.
7

Norris either knew or should have known by no later than January 24, 2014, that
the administrative remedy process was not working as he claims it should have
been. Norris therefore should have filed suit on his constitutional claims within
one year of that time, on or before January 24, 2015. Norris did not, however,
initiate this action until March 26, 2015 (the date on which he signed his Bivens
complaint), and his complaint was not actually filed until April 2, 2015. Both of
these dates were well past the expiration of the one-year statute of limitations
period on January 4, 2015.
If it is clear from the face of a plaintiff's complaint that the claim is timebarred, a complaint may be dismissed sua sponte at the screening stage. Jones v.
Bock, 549 U.S. 199, 216, (2007) (stating that if the allegations in the Complaint

"show that relief is barred by the applicable statute of limitations, the Complaint is
subject to dismissal for failure to state a claim" (citing F. R. Civ. P. 8(c)). Even
pre-Jones v. Bock case law supports the proposition that a district court may raise a

limitations bar sua sponte when the "defect was obvious from the face of the
complaint." Alston v. Tenn. Dep 't of Carr., 28 F. App'x 475, 476 (6th Cir. 2002)
(citing Pino v. Ryan, 49 F.3d 51, 53-54 (2d Cir. 1995)); see also, Paige v. Pandya,
238 F.3d 423, 2000 WL 1828653, at *2

(6 111 Cir. Dec. 5, 2000) (affirming

dismissal of a § 1983 complaint where "the face of the complaint" plainly

8

indicated that the alleged events transpired long before the complaint was filed)
Here, it is clear from the face of Norris's complaint that both his Fifth and Eighth
Amendment claims are barred by Kentucky's one-year statute oflimitations. 5
The Court will therefore dismiss Norris's Bivens complaint with prejudice
because his claims are barred by the applicable one-year statute of limitations.
Because the Court will dismiss this action, it will also deny as moot Norris' motion
seeking the appointment of counsel [D. E. No. 2].
2.

Construed Negligence Claims

To the extent that Norris alleges that the defendants were "grossly
negligent," id., p. 15, he may be attempting to assert a negligence claim under the
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. A district court must
afford a pro se litigant leniency and broadly interpret his claims, but even so, this
Court is unable to construe an FTCA claim in this proceeding, as Norris neither
refers to the FTCA nor indicates in any other respect that he intended to assert an
FTCA claim. A federal court is not required to conjure up allegations not pleaded
or guess at the nature of an argument. Brown v. Wal-Mart Stores, Inc., 507 F.

' To the extent that Norris alleges that he was denied the proper forms for filing administrative
grievances, and that he was thus was denied due process of law in that respect, the Comi
parenthetically notes that prisoners have no inherent constitutional right to an effective prison
grievance procedure. See Hewitt v. Helms, 459 U.S. 460, 467 (1983); Overholt v. Unibase Data
Ent1y, Inc., 221 F.3d 1335, 2000 WL 799760, at *3 (6th Cir. June 14, 2000) (Unpublished Table
decision); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Flick v. Alba, 932 F.2d 728,
729 (8th Cir. 1991 ).
9

App'x 543, 547 (6th Cir. 2012); Martin v. Overton, 391 F.3d 710, 714 (6th Cir.
2004); Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
Even if Norris had expressly asserted a claim under the FTCA, this Court
would lack subject-matter jurisdiction over it. The FTCA is a limited waiver of
sovereign immunity which permits an action against the United States for wrongful
acts committed by its employees during the course of their employment. See Fitch

v. United States, 513 F.2d 1013, 1015 (6th Cir. 1975); United States v. Orleans,
425 U.S. 807, 813 (1975). The FTCA is the exclusive remedy for such acts or
omissions. 28 U.S.C. § 2679
A claim under the FTCA may only be asserted against the United States of
America. 28 U.S.C. § 2674; Allgeier v. United States, 909 F.2d 869, 871 (6th Cir.
1990); Atorie Air, Inc. v. Fed.Aviation Admin., 942 F.2d 954, 957 (5th Cir. 1991)
Norris did not name the United States as a party to this action, and he cannot
recover damages under the FTCA from any individually-named prison officials.

See Smith v. United States, No. 4:10-CV-P47, 2010 WL 3927506, at *3 (W. D. Ky.
October 4, 2010); Leach v. Department of Veterans Affairs, No. 3:08-CV-469-C,
2009 WL 1852543, at *2 (W.D. Ky. June 29, 2009).
Further, even if Norris had asserted a claim under the FTCA and named the
United States as a defendant, the Court would still lack subject matter jurisdiction

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over the claim because an FTCA claimant must complete two preliminary
administrative steps before he or she can proceed in district court. An FTCA
claimant must first present an administrative claim to the appropriate federal
agency for administrative settlement within two years of its accrual, 28 U.S.C. §
2675(a); McNeil v. United States, 508 U.S. 106, 111 (1993); Garrett v. United
States, 640 F.2d 24, 25 (6th Cir. 1981). Then, if the agency denies the claim, the

claimant must then commence an action in federal court within six months of the
agency's denial of the claim. See 28 U.S.C. § 2401(b); Blakely v. United States,
276 F.3d 853, 865 (6th Cir. 2002).
Compliance with both statutory conditions is required before an FTCA
claimant can file in federal court; the claim is barred absent compliance with both
requirements. See 28 U.S.C. § 2401(b); Blakely, 276 F.3d at 865; Rogers v. United
States, 675 F.2d 123 (6th Cir. 1982); Garrett, 640 F.2d at 25. In other words,

timely and complete administrative exhaustion and compliance with both statutes
of limitations are conditions of the FTCA's waiver of sovereign immunity. United
States v. Kubrick, 444 U.S. 111, 117-18 (1979)

Norris provides no documentation showing that he complied with the
required exhaustion procedures under the FTCA. If Norris wishes to pursue an
FTCA claim relative to the events of April27, 2013, he may do so, but he has only

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until April 27, 2015, in which to submit a timely FTCA administrative claim. 6 If
the BOP denies his FTCA claim, Norris must file suit on his claim within six
months of the date on which the BOP denies his claim. Currently, however, this
Court lacks subject matter jurisdiction over any construed FTCA claim.

See

Glarner v. U.S. Dep't of Veterans Admin., 30 F. 3d 697, 700 (6th Cir. 1994).
CONCLUSION
Accordingly, the Court being advised, IT IS ORDERED as follows:
(1)

Plaintiff Larry Norris's Fifth and Eighth Amendment constitutional

claims asserted against the defendants under 28 U.S.C. § 1331 are DISMISSED

WITH PREJUDICE.
(2)

Norris's construed FTCA claims are DISMISSED WITHOUT

PREJUDICE to his right to file an FTCA administrative claim (as to the alleged
events of April27, 2013) with the Bureau of Prisons on or before April27, 2015.
(3)

Norris's motion requesting the appointment of counsel [D. E. No.2] is

DENIED as MOOT.
(4)

Judgment will be entered contemporaneously with this Memorandum

Opinion and Order in favor ofthe named defendants.

,.,.......

This April 17, 2015.

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~~· Signed By:
.;"'<>~

'~

Henrv R. Wilhoit. Jr.

United Statn Dlatrlct .Judge

The Court notes that this Bivens action was not filed until April2, 2015.
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