Gray v. Lexington Fayette Urban County Government et al

Filing 16

MEMORANDUM OPINION & ORDER: (1) dfts' 9 SECOND MOTION to Dismiss for failure to state a claim is GRANTED; (2) a separate judgment shall be entered this date. Signed by Judge Danny C. Reeves on 7/1/2013.(STB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
COREY CHARLES GRAY,
Plaintiff,
V.
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT, et al.,
Defendants.

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Civil Action No. 5: 13-045-DCR

MEMORANDUM OPINION
AND ORDER

*** *** *** ***
This matter is pending for consideration of Defendants Lexington-Fayette Urban County
Government’s (“LFUCG”), LFUCG Detention Center’s, LFUCG Division of Police Chief
Ronnie Bastin’s, LFUCG Division of Police Officer Elizabeth Adams’, and LFUCG Division
of Police Officer William Persley’s motion to dismiss.1 [Record No. 9] On June 10, 2013, the
Court gave notice of its intention to convert the motion to dismiss to a motion for summary
judgment and gave Plaintiff Corey Charles Gray fourteen days to submit any additional materials
relevant to the summary judgment analysis. [Record No. 14] On June 24, 2013, Gray filed a
supplement to his response, which included two additional documents for consideration.

1
This is the second motion to dismiss filed by the defendants. The Court denied the defendants’ first
motion to dismiss on March 26, 2013, after Gray filed an Amended Complaint which rendered that motion
moot. [Record No. 7]

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[Record No. 15] For the reasons explained below, the Court will grant summary judgment and
dismiss the claims asserted by Gray.
I.
This matter arises from Gray’s arrest and conviction for the May 18, 2010, robbery of a
Subway Restaurant. Officers Adams and Persley conducted an investigation of the robbery.
On May 20, 2010, a witness identified Gray as the perpetrator. Based on this identification, Gray
was arrested and the officers obtained a search warrant for his home. On March 18, 2011, while
Gray was confined at the LFUCG Detention Center (“Detention Center”), he suffered an
intracerebral hemorrhage, a type of stroke. [Record No. 8 ¶ 11] Gray was sent to a medical unit
for monitoring when he began exhibiting symptoms of the stroke. Approximately forty-eight
minutes later, the Detention Center contacted the Lexington Fire & Emergency Services to
provide emergency medical care. [Id.] Gray has since been awarded Social Security disability
benefits as a result of the stroke. [Id. ¶ 12] On January 12, 2012, Gray pleaded guilty to the
charge of second degree robbery. Thereafter, he was given a suspended sentence of five years
imprisonment and placed on probation. [Id.]
Gray filed suit on February 18, 2013. [Record No. 1] In his Amended Complaint, Gray
alleges that the Detention Center failed to reasonably respond to his medical condition and
unreasonably delayed providing necessary medical care. He contends that he was denied care
for his serious medical needs, in violation of the Eighth Amendment to the United States
Constitution. Further, Gray asserts a claim for the denial of his due process rights under the
Fourth Amendment on the ground that the identification procedure used by Officers Adams and

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Persley was “so unduly prejudicial as to taint [his] identification and arrest.” [Record No. 8 ¶ 19]
The Amended Complaint also contains a claim against LFUCG for failure to train and failure
to supervise, as well as a claim for municipal liability. Gray seeks compensatory damages,
punitive damages, costs, and attorney’s fees.
II.
Although the defendants originally sought to dismiss Gray’s claims under Rule 12(b)(6)
of the Federal Rules of Civil Procedure, they relied on a number of matters outside the
pleadings. Thus, the Court converted the motion to a motion for summary judgment in
accordance with Rule 12(d). Gray challenges this decision in his response to the June 10, 2013
Notice. [Record No. 14] However, contrary to Gray’s assertions, this is an appropriate use of
the Court’s authority under Rule 12(d). See Logar v. W. Va. Univ. Bd. of Governors, 493 F.
App’x 460, 461-62 (4th Cir. 2012) (affirming district court’s conversion of motion to dismiss
to motion for summary judgment where the court “provided notice to the parties of its intention
to convert the motions, and allowed the parties an opportunity to submit any additional
information regarding the statute of limitations issue); see also Wolfe v. Alexander, No. 3:110751, 2012 WL 7060841, at *2 (M.D. Tenn. July 5, 2012); Bell v. Zuercher, No. 10-72-ART,
2012 WL 1868391, at *1 (E.D. Ky. May 22, 2012); cf. Bruce v. Corr. Med. Servs., Inc., 389 F.
App’x 462, 465 (6th Cir. 2010) (finding abuse of discretion where district court converted a Rule
12(b)(6) motion to a motion for summary judgment without notice to the pro se petitioner).
The cases cited by Gray in opposition to conversion of the defendants’ motion are
inapposite, as they do not address the application of Rule 12(d). For example, in Buckingham

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v. United States, 998 F.2d 735 (9th Cir. 1993), the Ninth Circuit reversed a district court’s sua
sponte entry of summary judgment due to its failure to provide adequate notice to the defendant.
Id. at 742. And in LaBounty v. Coughlin, 137 F.3d 68 (2d Cir. 1998), the Second Circuit
reversed a district court’s grant of summary judgment and remanded the case with directions to
determine whether the defendants had produced certain documents requested by the plaintiff and,
if not, to allow him the “opportunity to receive the information and to use it to oppose summary
judgment.” Id. at 72. Gray’s reliance on Joseph v. Patterson, 795 F.2d 549 (6th Cir. 1986), is
similarly misplaced, as that case involved a district court’s grant of a motion to dismiss, not a
motion for summary judgment. Id. at 550. Finally, Gibson v. City of Chicago, 910 F.2d 1510
(7th Cir. 1990), concerned a district court’s entry of summary judgment on the merits of a claim,
despite the fact that discovery had been limited exclusively to an entirely different issue. Id. at
1519 (“[W]e must stress the unusual posture in which we confront this claim.”). This case does
not stand for the proposition, as Gray suggests, that “where there has been no discovery allowed,
the Court must use the [Rule] 12(b) standard for review.” [Record No. 15, p. 3] Such a
requirement would render Rule 12(d) superfluous, as it would almost never be appropriate to
convert a motion to dismiss into one for summary judgment.
Accordingly, the Court will consider the matters raised in the defendants’ motion to
dismiss under the standards applicable to motions for summary judgment. Entry of summary
judgment is required when “the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The party moving for summary judgment

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bears the burden of showing conclusively that no genuine issue of material fact exists. CenTra,
Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir. 2008). Once the moving party has met its burden of
production, its opponent must “‘do more than simply show that there is some metaphysical doubt
as to the material facts.’” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead,
the nonmoving party must present “significant probative evidence” of a genuine dispute in order
to defeat the motion for summary judgment. Chao v. Hall Holding Co., 285 F.3d 415, 424 (6th
Cir. 2002). In deciding whether to grant summary judgment, the Court views all the facts and
inferences drawn from the evidence in the light most favorable to the nonmoving party.
Matsushita, 475 U.S. at 587.
III.
The defendants assert that Gray’s claims are time-barred. In an action brought under 42
U.S.C. § 1983, the Court must apply the state’s “general or residual statute for personal injury
actions.” Owens v. Okure, 488 U.S. 235, 250 (1989). In Kentucky, § 1983 claims are governed
by the one-year statute of limitations contained in section 413.140(1)(a) of the Kentucky Revised
Statutes (“KRS”). Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990). However,
“federal law governs the question of when that limitations period begins to run.” McCune v. City
of Grand Rapids, 842 F.2d 903, 905 (6th Cir. 1988). Under federal law, a cause of action
accrues when the plaintiff “knew or should have known of the injury which forms the basis of
[his] claims.” Ruff v. Runyon, 258 F.3d 498, 500 (6th Cir. 2001). “A plaintiff has reason to

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know of his injury when he should have discovered it through the exercise of reasonable
diligence.” Id. (internal quotation marks omitted).
The defendants maintain that the one-year statute of limitations had run for both of Gray’s
primary claims well before he filed suit on February 18, 2013. Gray counters that he did not
discover the basis for his claims until a later date. Additionally, he contends that the statute of
limitations was tolled for both causes of action. On June 24, 2013, Gray filed the following
documents in support of his arguments: (1) an affidavit by Gray; and (2) a statement by Practical
Nurse Larry Thomas, Jr., regarding the standard of care for a patient exhibiting the signs and
symptoms of a stroke.2 [Record Nos. 15-1, 15-2]
As an initial matter, the Court rejects Gray’s assertion that the statute of limitations for
both causes of action were tolled until his conviction on March 14, 2012. [Record No. 15, pp. 12] Although he cites two cases for this proposition, neither compels the result he urges. First,
Ragland v. DiGiuro, 352 S.W.3d 908 (Ky. Ct. App. 2010), is readily distinguishable from the
facts and procedural posture of this action. In Ragland, the Kentucky Court of Appeals declined
to apply the one-year statute of limitations to a wrongful death action, concluding that “the
public policy of this Commonwealth would be furthered by allowing the family of a murder
victim to wait until conviction of a defendant before filing suit.” Id. at 911. This case does not
purport to apply to all cases in which one of the parties is the defendant in a separate criminal

2
In his supplemental response, Gray argues that he “needs . . . discovery to develop the facts upon
which he will depend to oppose a motion for summary judgment,” and describes the matters on which he
seeks discovery. [Record No. 15, pp. 3-4] Each item in this list of requested discovery concerns the merits
of Gray’s claim and, therefore is irrelevant to the Court’s inquiry regarding the timeliness of this action.

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action, as Gray seems to argue. Therefore, it does not support the assertion that his claims were
tolled until the date of his conviction.
Reliance on Pedigo v. Breen, 169 S.W.3d 831 (Ky. 2004), is similarly misplaced. In
Pedigo, the Kentucky Supreme Court considered the accrual of a cause of action for professional
negligence and held that the statute of limitations begins to run when “the underlying case is
final and non-appealable.” Id. at 833. Because Gray has not brought a malpractice claim against
his attorney in the state-court matter — indeed, he has not even named his attorney as a
defendant in this case — the holding and reasoning in Pedigo does not apply here.
A.

Count I – Deliberate Indifference to Serious Medical Needs

Gray seeks to recover for the defendants’ alleged deliberate indifference to his medical
needs in Count I of the Amended Complaint. The defendants argue that Gray’s cause of action
for this claim accrued on the date of the injury (i.e., March 18, 2011) and, therefore, is timebarred. Gray responds that he did not have the knowledge necessary for the statute of limitations
to begin to run until May 3, 2012, when he read an article in the Lexington Herald Leader about
the medical treatment provider at the Detention Center. Additionally, he maintains that the
statute of limitations was tolled under two separate statutory provisions.
As a general rule, a claim for deliberate indifference accrues when the inmate or detainee
is denied the medical attention he seeks and requires. Hawkins v. Spitters, 79 F. App’x 168, 169
(6th Cir. 2003); see also Burns v. Hopkins Cnty. Gov’t, 4:09CV-4-M, 2009 WL 2589515, at *1
(W.D. Ky. Aug. 19, 2009) (concluding that deliberate indifference claim accrued “at the latest,
on December 6 when he allegedly suffered a physical injury due to the inadequate medical

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care”). Thus, federal law provides that the statute of limitations for Gray’s Eighth Amendment
claims began to run on March 18, 2011. However, Gray asserts that he did not know about the
subject injury “until the time he reasonably discovered that the medical care he received at the
Detention Center was through a contract with a private company, [Correctional Medical
Services, Inc. (“CMS”)], and that CMS had been shown to have failed to provide adequate
medical care for inmates in the past.” [Record No. 11, p. 3]
Gray is incorrect in arguing that Kentucky’s “discovery rule” prevented his claim from
accruing until May 3, 2012.3 The discovery rule is a means “to identify the ‘accrual’ of a cause
of action when an injury is not readily ascertainable or discoverable.” Wiseman v. Alliant
Hosps., Inc., 37 S.W.3d 709, 712 (Ky. 2000). Under this rule, the statute of limitations “begins
to run on the date of the discovery of the injury, or from the date it should, in the exercise of
ordinary care and diligence, have been discovered.” Id. (internal quotation marks omitted). The
discovery rule “is available only in cases where the fact of injury or offending instrumentality
is not immediately evident or discoverable with the exercise of reasonable diligence, such as in
cases of medical malpractice or latent injuries or illnesses.” Fluke Corp. v. LeMaster, 306
S.W.3d 55, 60 (Ky. 2010).

3
Both parties conflate the issues of accrual and claim tolling. As explained previously, federal law
governs the accrual of a cause of action under § 1983. However, Kentucky’s discovery rule does not appear
to differ significantly from the federal standard for determining the accrual of a cause of action. Compare
Ruff, 258 F.3d at 500, with McLain v. Dana Corp., 16 S.W.3d 320, 326 (Ky. Ct. App. 1999) (“[T]he
discovery rule provides that a cause of action accrues when the injury is, or should have been, discovered.”).
Therefore, the Court will consider the defendants’ arguments regarding the discovery rule when determining
the accrual date for Gray’s claims. Additionally, the Court will take those arguments into account as they
relate to the tolling issue under KRS § 413.190.

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Here, Gray’s injury was ascertainable and discoverable on the date of the injury itself.
Gray has made no allegations — either in his Amended Complaint or in the affidavit filed on
June 24, 2013 — that the defendants in any way concealed the injury or the “identity of the
wrongdoer.” McLain, 16 S.W.3d at 326. Rather, Gray’s knowledge of the facts concerning his
injury put him on “notice to investigate” those facts. Id.; see Hawkins, 79 F. App’x at 169. That
he did not undertake an investigation until much later does not change the date of accrual of the
action. Therefore, the Court finds that the statute of limitations applicable to Gray’s claim for
deliberate indifference commenced on March 18, 2011, when the defendants allegedly delayed
seeking emergency medical treatment for him.
Notwithstanding the March 18, 2011 accrual date, Gray asserts that the statute of
limitations was tolled under KRS § 413.190 until he “reasonably discovered his cause[] of action
through the media publicity in Lexington on May 3, 2012.” [Record No. 11, p. 5] This tolling
statute provides:
When a cause of action . . . accrues against a resident of this state, and he by
absconding or concealing himself or by any other indirect means obstructs the
prosecution of the action, the time of the continuance of the absence from the state
or obstruction shall not be computed as any part of the period within which the
action shall be commenced.
KRS § 413.190(2). Obstruction may occur “where a defendant conceals a plaintiff’s cause of
action so that it could not be discovered by the exercise of ordinary diligence on the plaintiff’s
part.” Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295, 297 (Ky. Ct. App. 1993).
Gray cites Greywolf v. Roman Catholic Diocese of Covington, No. 2010-CA-000814-MR,
2011 WL 3361342 (Ky. Ct. App. Aug. 5, 2011), in support of his argument that the statute of

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limitations did not begin to run until he read an article in the newspaper about CMS’s treatment
of inmates. However, Gray has misconstrues Greywolf’s holding. In that case, the plaintiff
asserted claims against the Roman Catholic Diocese for sexual abuse by a priest. Because the
court found that the Diocese had actively concealed its knowledge of the priest’s behavior in the
past, it concluded that the statute of limitations was tolled under KRS § 413.190. Despite this
finding, the Greywolf court also determined that the statute of limitations began to run again in
1993 due to “extensive publicity in Lexington surrounding the sexual abuse scandal.” Id. at *1.
The court opined that, “[n]otwithstanding the application of the tolling provision, the law still
imposes a duty on a plaintiff to exercise reasonable care and diligence in pursuing a cause of
action.” Id. at *3. In other words, a cause of action that can be discovered through ordinary
diligence will not qualify for tolling under KRS § 413.190.4 Id. (noting that a potential plaintiff
cannot “remain oblivious to a cause of action when information was available that it existed”).
Here, Gray has produced no evidence of any active concealment on the part of the
defendants regarding his claims. In fact, he has not alleged concealment or obstruction by
employees of the Detention Center. Instead, the Amended Complaint contains a single allegation
that the “Detention Center should have known that CMS had a history of failing to meet basic
health care requirements for inmates,” not that it concealed that information. [Record No. 8
¶ 11] Moreover, the defendants point out that there was local media coverage asserting
inadequate medical attention at the Detention Center as early as September 1, 2010. [Record
No. 12, p. 7 (citing Josh Kegley, Two Fayette Jail Nurses are Under Investigation in Inmate’s
4
Contrary to Gray’s apparent assertion, “media attention” is not the only method of discovering a
cause of action.

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Death,

Lexington

Herald

Leader,

Sept.

1,

2010,

available

at

www.kentucky.com/2010/09/01/1415035/two-fayette-jail-nurses-are-under.html)]5 Therefore,
even if Gray were able to demonstrate some degree of concealment or obstruction by a
defendant, it would not toll the cause of action under KRS § 413.190. Gray “readily had access
to” at least one newspaper article that provided notice that a claim may exist before his injury
even occurred. Greywolf, 2011 WL 3361342, at *3. Therefore, the time for filing an action was
not reset on May 3, 2012, when he actually obtained knowledge concerning his potential claims.
Finally, Gray argues that the statute of limitations was tolled under KRS § 413.170
because he was of unsound mind at the time the injury occurred. This statute provides:
If a person entitled to bring any action . . . was, at the time the cause of action
accrued . . . of unsound mind, the action may be brought within the same number
of years after the removal of the disability or death of the person, whichever
happens first, allowed to a person without the disability to bring the action after
the right accrued.
KRS § 413.170(1). Gray asserts that, since March 18, 2011, “he has been under a disability as
a result of the brain hemmorage [sic] . . .” [Record No. 11, p. 4] The defendants counter that
his actions in the underlying criminal matter belie the assertion of a disability and undermine
Gray’s reliance on KRS § 413.170(1).
To toll the statute of limitations under KRS § 413.170(1), a plaintiff must be of “such
unsound mind as to render [him] incapable of managing [his] own affairs.” Se. Ky. Baptist
Hosp., Inc. v. Gaylor, 756 S.W.2d 467, 469 (Ky. 1988) (citing Stair v. Gilbert, 272 S.W. 732

5
The Court notes that this article and the article that Gray read on May 3, 2012 may actually be one
and the same. [See Record No. 15-1 ¶ i (describing Gray reading an article in the Lexington Herald Leader
“about a man who had died at the Detention Center, [and] that . . . 2 nurses employed by CMS were
suspended by the State Nursing Board”)]

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(1925)); see Rigazio, 853 S.W.2d at 297 (explaining that plaintiff must have “been rendered
incapable of managing his own affairs”). Although it is typical for a statute of limitations to be
tolled by a pre-existing disability, “the unsound-mind requirement is also met if the plaintiff is
rendered of unsound mind by the injury itself.” Powell v. Jacor Commc’ns Corporate, 320 F.3d
599, 603 (6th Cir. 2003). Further, whether a plaintiff is of unsound mind is a question of fact.
Gaylor, 756 S.W.2d at 471. “Once the statute of limitations is raised, the burden falls on the
complainant to prove such facts as would toll the statute.” Id. at 469.
In support of the application of the tolling provision, Gray points to the fact that he was
awarded Social Security disability benefits after his injury. According to Gray’s Amended
Complaint, the Social Security Administration found that Gray became disabled on March 18,
2011, and that he suffers from “left facial droop and siplopia [sic],6 decreased right hip, knee and
ankle strength, impaired balance and abnormal gait, hemiparesis, [and] double vision.” [Record
No. 8 ¶ 12] Although serious, these ailments do not establish that Gray is of unsound mind for
purposes of KRS § 413.170. The standard for finding disability under the Social Security
regulations is very different from the standard under KRS § 413.170. To be disabled, a Social
Security claimant must establish that he has an “impairment or combination of impairments
which significantly limits [his] physical or mental ability to do basic work activities.” 20 C.F.R.
§ 404.1520(c). It is entirely possible for a person to be impaired to the point of being unable to
work, but not so impaired as to be “incapable of managing [his] own affairs.” Gaylor, 756

6

This appears to be a misspelling of “diplopia,” the medical term for double vision.

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S.W.2d at 469. And that certainly seems to be the case here, where Gray’s impairments are
primarily physical in nature, not mental.7
Additionally, Gray has submitted an affidavit regarding the severity of his injuries and
their effects. He states that he was in intensive care for seven days after losing consciousness
at the Detention Center, after which he was “moved to the floor unit, neurology to continue
treatment.” [Record No. 15-1 ¶ b] Gray also asserts that his mother was appointed as his
guardian on April 4, 2011, because he could not communicate after the stroke. [Id. ¶ d; Record
No. 8 ¶ 12] Although not definitive,8 this statement is the best evidence that Gray has proffered
in support of his assertion that he was legally disabled by his March 18, 2011 injury. Therefore,
the Court will assume for the sake of argument that Gray has met his burden of proving that the
stroke rendered him incapable of managing his own affairs, at least for some period of time.
But the defendants argue that, even if Gray was of unsound mind when his cause of action
accrued, his disability did not continue. In support of this argument, the defendants have
submitted evidence which establishes that Gray: (1) was found competent to stand trial on
December 5, 2011; and (2) entered a guilty plea on January 12, 2012. [Record Nos. 10-1, 10-2,
13-3] The defendants concede that “the existence of mental disability under the statute is a

7
Similarly, the statements by Practical Nurse Larry Thomas that stroke is “the leading cause of
disability in the U.S.” and that it may result in complications including “memory loss and/or thinking
difficulties” do not establish that Gray was disabled in this way by the stroke that he suffered. [Record No.
15-2]
8
Gray asserts that his mother was appointed as his guardian because he “could not communicate,” not
necessarily because he was incapable of making decisions or managing his affairs. [Record No. 15-1 ¶ d]
Further, neither the affidavit nor the Amended Complaint indicate the type of guardianship, the duration of
the guardianship, or the entity that appointed the guardian.

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question of fact and does not depend upon a legal adjudication following a sanity inquest.”
Carter v. Huffman, 262 S.W.2d 690, 692 (Ky. 1953). However, they maintain that Gray “could
not have been competent to stand trial on December 5, 2011, and subsequently knowingly,
intelligently, and voluntarily waived his constitutional rights implicated in his guilty plea entered
on January 12, 2012, yet remained legally incompetent for purposes of tolling of the statute of
limitations beyond such events.” [Record No. 12, p. 8] Accordingly, the defendants ask the
Court to find that any disability that tolled the statute of limitations was removed more than a
year before this action was filed.
Again, however, the Court notes that the standards for finding tolling due to “unsound
mind” and for finding a criminal defendant competent are different. To determine competency
to stand trial or to plead guilty, the trial court must consider “‘whether [the accused] has
sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding — and whether he has a rational as well as factual understanding of the
proceedings against him.’” Dunlap v. Commonwealth, No. 2010-SC-000226-MR, 2013 WL
3121689, at *5 (Ky. June 20, 2013) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960))
(alteration in original). The standard for tolling, as stated above, is more stringent. See Gaylor,
756 S.W.2d at 469. Under the differing standards, it would appear that a person could be of
unsound mind for the purposes of the tolling statute yet competent to stand trial. In other words,
a person may be incapable of managing his affairs, yet able to understand the charges against
him and assist in his own defense. See Atkins v. Virginia, 536 U.S. 304, 318 (2002) (“Mentally
retarded persons frequently know the difference between right and wrong and are competent to

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stand trial.”). Thus, a finding of unsound mind would imply incompetency, but the reverse is
not necessarily true.
Despite the foregoing analysis, the Court concludes that Gray has failed to establish that
he brought this action within one year “after the removal of the disability.” KRS § 413.170(1).
It is unclear whether his mother’s guardianship continued for any length of time or whether it
was terminated when he regained his ability to communicate. Nonetheless, the record establishes
that Gray’s condition improved over time. In fact, Gray’s affidavit states that he was moved to
a convalescent home on April 24, 2011,9 and that he returned home on May 17, 2011. [Record
No. 15-1 ¶¶ e, f] And the only allegation in the Amended Complaint regarding Gray’s ongoing
condition is that he “continues to be on many medications, has high blood pressure, hearing and
vision loss and partial paralysis in connection with the stroke, and depression.” [Record No. 8
¶ 12] Although the Fayette Circuit Court’s competency finding is not dispositive, it does serve
as further evidence that Gray’s condition improved. Moreover, when entering his guilty plea in
the underlying state criminal action, Gray signed a document which included the following
representation to the court: “I am not now suffering from or being treated for any mental
condition.” [Record No. 13-3, p. 1] Finally, as the defendants point out, Gray is “proceeding
in his own name in this action, and not by [the] guardian or next friend procedures set forth in
Rule 17.” [Record No. 12, p. 9]
In short, there is “nothing in the record to suggest that [Gray] was of unsound mind
through” February 18, 2012, nearly a year after his injury. Anderson v. Speedway SuperAmerica,
9
The affidavit lists this date as April 24, 2013. [Record No. 15-1 ¶ 3] This appears to be a typo, as
it does not fit within the time line otherwise described in the affidavit.

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LLC, No. 05-57-DLB, 2007 WL 710164, at *2 (E.D. Ky. Mar. 6, 2007); see Smith v. Gaines, No.
2005-CA-000339-MR, 2005 WL 3005350, at *1 (Ky. Ct. App. Nov. 10, 2005) (refusing to find
that statute of limitations was tolled where plaintiff failed to “proffer hard evidence that he has
been rendered incapable of carrying on the day-to-day affairs of human existence” (internal
quotation marks omitted)). In summary, Gray has failed to meet his burden of demonstrating
that the statute of limitations was tolled until within a year before he filed suit against the
defendants. As a result, his Eighth Amendment claims are time-barred.
B.

Count II – Unlawful Identification and Search

Count II of the Amended Complaint contains a claim that the defendants violated Gray’s
Fourth Amendment due process rights through the allegedly unlawful identification procedure
and resulting unlawful search. The defendants assert that the statute of limitations commenced
on May 20, 2010 — the date that the witness identified Gray as the robbery suspect. However,
Gray maintains that he did not have reason to know of the constitutional injury until April 18,
2012, when he read an article in the Lexington Herald Leader regarding an investigation into
Officers Adams’ and Persley’s previous use of “improper identification procedures.” [Record
No. 11, p. 3] Further, he again argues that the statute of limitations for this claim was tolled
under KRS §§ 413.170 and 413.190.
The Court rejects Gray’s assertion that his Fourth Amendment claims accrued on April
18, 2012. Such claims generally accrue on “the date of the alleged illegal search and seizure.”
Harper v. Jackson, 293 F. App’x 389, 392 n.1 (6th Cir. 2008). Therefore, for the reasons

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discussed above, Gray was on notice to investigate his claims as late as May 20, 2010.10 [Record
No. 8 ¶¶ 8-10] Further, the defendants have established that Gray was aware of his alleged
constitutional injury as well as the identity of the responsible parties. On November 3, 2010,
Gray filed a motion to suppress in his criminal case, which specifically challenged the
identification procedure used by the officers. Gray sought to suppress all items obtained from
his apartment as “fruit of the poisonous tree.” [Record No. 10-3] On November 28, 2011, he
requested that the Fayette Circuit Court consider additional evidence that Officers Adams and
Persley “apparently were subject to an internal police investigation concerning job performance
duties.” [Record No. 10-4, p. 1] Gray’s contention that he did not discover the fact of the
defendants’ disciplinary proceedings until April 18, 2012, is not supported by the evidence in
the record. Gray either“knew or should have known of the injury which forms the basis of” his
Fourth Amendment claims by November 28, 2011, at the very latest.11 Ruff, 258 F.3d at 500.
Gray’s assertion that his Fourth Amendment claim was tolled under KRS § 413.170 is
likewise unavailing. An intervening disability does not toll the statute of limitations. See
Kingman’s Comm. v. First Nat’l Bank, 55 S.W.2d 39, 40 (Ky. Ct. App. 1932) (“The running of
the statute having started, was not stopped by [the plaintiff’s] subsequent disability.”); Fox v.

10
To the extent that Gray seeks to assert a claim for false arrest or arrest without probable cause, such
claims accrue “‘at the time the claimant becomes detained pursuant to legal process.’” Fox v. DeSoto, 489
F.3d 227, 235 (6th Cir. 2007) (quoting Wallace v. Kato, 549 U.S. 384, 397 (2007)). Gray was arraigned on
May 21, 2010. [Record No. 13-1]
11
In applying November 28, 2011 as the outside date for accrual, the Court assumes for the sake of
argument that knowledge of the internal investigation of the officers was necessary for the statute of
limitations to begin to run on Gray’s claims. However, it is not at all clear that this conclusion would be
warranted. See Harper, 293 F. App’x at 392 n.1; Fox, 489 F.3d at 235.

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Hudson’s Ex’x, 150 S.W. 49, 52 (Ky. Ct. App. 1912) (“[T]his statute only stops the running of
the statute of limitation when the person entitled to bring the action ‘was at the time the cause
of action accrued’ laboring under some of the disabilities mentioned in the section.”). Because
the allegedly unconstitutional identification and search took place on May 20, 2010, the statute
of limitations could not have been tolled by Gray’s subsequent injury on March 18, 2011.
Gray also argues that the statute of limitations was tolled under KRS § 413.190, again
relying on an article from the Lexington Herald Leader to assert that he discovered his cause of
action on April 18, 2012. However, there is no evidence to demonstrate or imply that the
defendants took any action to conceal or obstruct Gray’s claims. See Greywolf, 2011 WL
3361342, at *3 (“For the defendant’s concealment to toll the running of the statute of limitations,
it must hide the plaintiff’s cause of action in such a manner that it cannot be discovered by the
exercise of ordinary diligence.”).
Additionally, the evidence presented establishes that Gray had actual knowledge of the
facts underlying his Fourth Amendment claims. As discussed above, Gray filed a motion to
suppress in the Fayette Circuit Court on November 3, 2010, which specifically described the
identification procedure used in the police investigation of Gray. [Record No. 10-3] In that
motion, Gray challenged the identification procedure as unconstitutional and sought the
exclusion of any testimony regarding the prior identification, any in-court identification, and any
evidence obtained from the search of his apartment. [Id.] The court denied the motion on
November 23, 2010. [Record No. 13-2] Gray later moved the Fayette Circuit Court to consider
additional evidence in support of the suppression issue. Specifically, Gray asked the Court to

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take into account the “internal police investigation concerning job performance duties” of
Officers Adams and Persley. [Record No. 10-4, p. 1] Thus, the record shows that Gray was
aware of the facts underlying the claims contained in Count II by November 28, 2011, at the very
latest. The Court concludes that Gray’s Fourth Amendment claims are time-barred under KRS
§ 413.140(1)(a).
In the alternative, the Court finds that these claims are barred by collateral estoppel. In
civil actions brought pursuant to § 1983, a federal courts must “give preclusive effect to statecourt judgments whenever the courts of the State from which the judgments emerged would do
so.”

Allen v. McCurry, 449 U.S. 90, 96 (1980).12

And in Kentucky, “under proper

circumstances, a criminal conviction may be used for purposes of collateral estoppel in later civil
proceedings.” Gossage v. Roberts, 904 S.W.2d 246, 248 (Ky. Ct. App. 1995); Roberts v. Wilcox,
805 S.W.2d 152, 153 (Ky. Ct. App. 1991). Specifically, the “judgment in a former action
operates as an estoppel . . . as to matters which were necessarily involved and determined in the
former action,” although it is “not conclusive as to matters which were immaterial or unessential
to the determination of the prior action.” Gossage, 904 S.W.2d at 248 (quoting Sedley v. City
of West Buechel, Ky., 461 S.W.2d 556 (Ky. 1970)).
Here, Gray challenged the actions that form the basis of his current claims before the
Fayette Circuit Court in a motion to suppress and a later motion to consider additional evidence.

12
The Supreme Court in Allen noted that there may be an exception “where state law did not provide
fair procedures for the litigation of constitutional claims, or where a state court failed to even acknowledge
the existence of the constitutional principle on which a litigant based his claim.” 449 U.S. at 101. However,
it went on to state that this exception is essentially the same as the longstanding principle that collateral
estoppel is not available “where the party against whom an earlier court decision is asserted did not have a
full and fair opportunity to litigate the claim or issue decided by the first court.” Id.

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[Record Nos. 10-3, 10-4] Thus, Gray was provided a full and fair opportunity to litigate the
issues raised in his Amended Complaint. Moreover, his Fourth Amendment claims were
necessarily determined by the Fayette Circuit Court when it denied his motion to suppress.
[Record No. 13-2] Although Gray entered a conditional guilty plea which specifically reserved
the right to appeal the court’s ruling on the motion to suppress and motion to present additional
evidence [Record No. 13-4, p. 2], he later expressly waived that right to appeal on April 11,
2012. [Record No. 10-2] Therefore, Gray is “estopped by his guilty plea from now alleging”
that the officers used an unconstitutional identification procedure or that they conducted an
illegal search and seizure. Hemphill v. Haglund, 45 F. App’x 519, 520 (6th Cir. 2002); see also
Donovan v. Thames, 105 F.3d 291, 298 (6th Cir. 1997) (finding that plaintiff in a § 1983 action
was “precluded from relitigating the issue of the validity of his arrest because the state court
already determined that the officers had probable cause”).
IV.
Gray’s § 1983 claims for deliberate indifference to serious medical needs and for
unlawful search and seizure are time-barred pursuant to KRS § 413.140(a)(1). Additionally, his
Fourth Amendment claims are barred by the doctrine of collateral estoppel. As a result, the
Court will also dismiss the derivative claims contained in Counts III and IV of the Amended
Complaint. For the reasons discussed above, it is hereby
ORDERED as follows:
1.

The defendants’ Motion to Dismiss [Record No. 9], as converted to a motion for

summary judgment, is GRANTED.

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2.

A separate judgment shall be entered this date.

This 1st day of July, 2013.

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