Jackson v. Farmer et al

Filing 5

MEMORANDUM OPINION & ORDER: (1) pla's 1 Complaint is DISMISSED because all claims raised are time-barred; (2) matter is DISMISSED & STRICKEN from the docket; (3) a corresponding judgment will be entered. Signed by Judge Danny C. Reeves on 9/3/15.(KJR)cc: COR, Jackson (US Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)

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LEVAR JACKSON,
Plaintiff,
V.
LT. FARMER, et al.,
Defendants.
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Civil Action No. 5: 15-095-DCR

MEMORANDUM OPINION
AND ORDER

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Plaintiff Levar Jackson filed this action while he was in custody of the Kentucky
Department of Corrections (“KDOC”) and living in a half-way house located in Louisville,
Kentucky.1 Proceeding pro se, Jackson filed a complaint under 42 U.S.C. § 1983, alleging
that defendants Lieutenant Farmer, Sergeant Frederick, Captain Simpson, and J. Jones, all
jail officials at the Fayette County Detention Center (“FCDC”) in Lexington, Kentucky,
violated his federal constitutional rights. [Record No. 1] Jackson seeks compensatory
damages of no less than $2,000,000.00 and other relief. [Id., p. 31]
Because Jackson is proceeding in forma pauperis, the Court conducts a preliminary
review of his Complaint. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a). The Court liberally

1
It appears that Jackson may have been released from the half-way house and is no longer in
custody. The Kentucky Department of Corrections’ website reflects that no person by the name of Levar
Jackson is presently in custody of the KDOC. See Kentucky Department of Corrections, Kentucky Online
Offender Look-up, available at http://kool.corrections.ky.gov/?sortOrder= (last visited Aug. 27, 2015).
Jackson has not provided the Court with his current mailing address.

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construes his claims and accepts his factual allegations as true. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 55556 (2007)). As
explained below, the Court will dismiss Jackson’s constitutional claims because they are
time-barred.
I.
The primary focus of Jackson’s Complaint concerns his belief that June Harris, also
known as June Williams,2 placed a contract on his life. Jackson does not state when this
contract commenced, but he states that it gave him problems at four other jails in Kentucky
prior to his confinement at the FCDC.3 [Record No. 1, pp. 1112] These jails were located
in the following counties: Daviess, Russell, Fulton, and Woodford. [Id.] The plaintiff
implies that some officials at these county jails had knowledge of the contract and were
involved in a conspiracy to assist in its execution. [Id.]
Jackson states that on or about July 13, 2013, when he was booked into the FCDC, he
informed the defendants and several other jail officials that he feared for his life due to the
June Harris contract and the problems he had experienced at the four prior jails. For this
reason, Jackson states that he requested to be placed in Protective Custody (“PC”) at FCDC.
[Record No. 1, pg. 16] The defendants declined to place Jackson in PC because: (i) they
were unable to verify his “contract” story in communicating with officials at the prior four

2
Jackson provides no details regarding the reasons why June Harris, who appears to be a private
citizen and not a state actor, allegedly wants to have him murdered.
3
Jackson states that he was housed in the FCDC from July 12, 2013 until April 14, 2014. [Record
No. 1, p. 2] 

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jails; and (ii) he had signed a waiver upon being booked into the FCDC stating that he had no
need to be placed in PC. [Id., p. 17] The plaintiff claims that the defendants intended to
force him into the general population where he could be killed. [Id., pp. 2728] On this
premise, Jackson argues that the defendants were deliberately indifferent to his health and
safety in violation of the Eighth Amendment. U.S. CONST. amend. VIII.
Jackson’s other Eighth Amendment claim concerns his allegation that his food tray
was tampered with on more than one occasion and that Officer Alexander made some
“spitting gestures” as though Alexamder was spitting in his food tray. [Record No. 1-1, p.
38] Jackson also asserts a First Amendment claim, U.S. CONST. amend. I, alleging that he
had received two “legal mail” envelopes that were opened outside his presence.4 [Id., p. 36]
II.
A.

Exhaustion of Administrative Remedies

Under the Prison Litigation Reform Act of 1995 (“PLRA”), Congress amended 42
U.S.C. § 1997e to make exhaustion of administrative remedies mandatory for prisoners
making claims about the conditions of their confinement. The statute now provides:
No action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are
available are exhausted.
42 U.S.C. § 1997e(a) (1995).

4
The exhibits attached to Jackson’s Complaint reflect that he filed his grievance concerning spit
being in his food on September 16, 2013, and that he filed the grievance concerning the opening of his
“legal mail” on March 4, 2014. [Record No. 1-1, pp. 36, 38]

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The language of §1997e(a) expressly requires exhaustion of administrative remedies
before an inmate-plaintiff may bring a civil action or appeal, even if the administrative
process does not make provision for the specific relief requested by the plaintiff. Booth v.
Churner, 532 U.S. 731, 741 (2001) (“Thus, we think that Congress has mandated exhaustion
clearly enough, regardless of the relief offered through administrative procedures.”). “[T]he
PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege excessive force
or some other wrong. Porter v. Nussle, 534 U.S. 516, 532 (2002).
The PLRA statute also requires the proper exhaustion of the administrative remedy
process at issue. Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper exhaustion demands
compliance with an agency’s deadlines and other critical procedural rules . . . ” Id. at 90.
Discussing the purposes of exhaustion, the Supreme Court stressed that the benefits of
exhaustion “can be realized only if the prison grievance system is given a fair opportunity to
consider the grievance. The prison grievance system will not have such an opportunity
unless the grievant complies with the system’s critical procedural rules.” Id. at 95.
Jackson acknowledges that he did not appeal the grievances he filed concerning food
tampering claims and the alleged opening of his legal mail. Jackson states that he did not
appeal because he was told by inmate services that his grievances were complaints against
officers so they could not be appealed. [Record No. 1, p. 6] Assuming the truthfulness of
Jackson’s statement, it is clear from the Complaint that Jackson did not attempt to exhaust
his administrative remedies because jail officials told him that his grievances were not
appealable.
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Under certain circumstances, the exhaustion requirement may be subject to waiver,
estoppel, or equitable tolling. Johnson v. Ford, 261 F. App’x 752, 755 (5th Cir. 2008) (citing
Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003) (overruled by implication on other
grounds)). Courts must afford an inmate an opportunity to show that he has either exhausted
the available administrative remedies or that he should be excused from this requirement.
Johnson, 261 F. App’x at 755. For instance, the failure to exhaust may be excused when
prison officials interfere with a prisoner’s pursuit of an administrative remedy.

Id.

(referencing Holloway v. Gunnell, 685 F.2d 150, 154 (5th Cir.1982)); see also Ziemba v.
Wezner, 366 F.3d 161, 163 (2nd Cir. 2004).

However, exceptions to administrative

exhaustion requirements apply only in “extraordinary circumstances.” Fuller v. Rich, 11
F.3d 61, 62 (5th Cir.1994) (examining administrative exhaustion requirement under habeas
law, which requires even less stringent exhaustion than § 1997e). Assuming jail officials
told Jackson that his grievances were not appealable and that he relied on that advice to his
detriment, this situation presents “extraordinary circumstances” that may excuse Jackson
from the exhaustion requirement.1
B.

Statute of Limitations

Excusing Jackson from the exhaustion requirement, the Court has further considered
his constitutional claims brought under the First and Eighth Amendments and concludes that
they should be dismissed because they are barred by the applicable one-year statute of
limitations. Because 42 U.S.C. § 1983 does not provide its own statute of limitations, federal

1
The Court notes that Jackson’s reliance on the advice of jail officials may not excuse him from
the exhaustion requirement; however, the Court has resolved to continue with the analysis for Jackson’s
benefit.

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courts “borrow” the applicable limitations period from the state where the events occurred.
Owens v. Okure, 488 U.S. 235, 239 (1989). For constitutional torts committed in Kentucky,
the one-year limitations period under KY. REV. STAT. § 413.140(1)(a) for bringing general
personal injury actions applies. Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 181–82 (6th
Cir. 1990).
Federal law governs when the statute of limitations begins to run. Collyer v. Darling,
98 F.3d 211, 220 (6th Cir. 1996); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). A
cause of action accrues when “the plaintiff knows or has reason to know that the act
providing the basis of his or her injury has occurred.” Collyer, 98 F.3d at 220; see also
Friedman v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991); Sevier, 742 F.2d at 273.
1.

Eighth Amendment Claims
i.

Failure to Protect; Safety and Security Needs

Jackson states that when he was booked into the FCDC in July of 2013, the
defendants failed to place him in PC at his request, which violated the Eighth Amendment.
The series of events concerning Jackson’s location in the FCDC, ranging from his placement:
(i) in isolation; (ii) with the general population; and (iii) eventually in PC, occurred over a
period from July to October 2013. [Record No. 1, p. 3, 27] Thus, it is clear from Jackson’s
Complaint that his claim of an Eighth Amendment violation accrued, at the latest, “around
October 2013.” [Record No. 1, p. 3] By the end of October of 2013, Jackson either knew or
should have known that his Eighth Amendment rights had been violated.
To satisfy Kentucky’s one-year statute of limitations, Jackson should have filed a §
1983 action alleging this Eighth Amendment violation no later than November 1, 2014.
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However, Jackson did not file his Complaint until April 6, 2015, more than six months after
the one-year statute of limitations had expired. Therefore, the face of Jackson’s Complaint
clearly demonstrates that his Eighth Amendment failure-to-protect action is barred by
Kentucky’s one-year statute of limitations. A district court is permitted to raise a limitations
bar sua sponte when the defect is “obvious from the face of the complaint.” Alston v. Tenn.
Dep’t of Corr., 28 F. App’x 475, 476 (6th Cir. 2002) (citing Pino v. Ryan, 49 F.3d 51, 5354
(2d Cir. 1995)).
ii.

Food Tampering

On September 15, 2013, Jackson filed a grievance and a complaint at the FCDC
claiming that Officer Alexander was tampering with his food. Specifically, he claimed that
he “was getting something looking like spit and hair in my tray every meal.” [Record No. 11, pp. 34, 38] On September 23 and 24, 2013, respectively, FCDC jail officials responded to
Jackson’s complaint and grievance, concluding that the claims were unfounded. [Id., pp. 35,
39] Jackson did not appeal.
To satisfy Kentucky’s one-year statute of limitations applicable to § 1983 actions,
Jackson should have filed a § 1983 action alleging this constitutional rights violation no later
than September 25, 2014. Again, however, Jackson did not file his Complaint until April 6,
2015, more than six months after the one-year statute of limitations had expired. Thus, the
face of Jackson’s Complaint plainly demonstrates that his food tampering action is barred by
Kentucky’s one-year statute of limitations. And as noted above, a district court is permitted
to raise a limitations bar sua sponte when the defect is “obvious from the face of the
complaint.” Alston, 28 F. App’x at 476.
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B.

First Amendment Claim

On March 1, 2014, Jackson filed a grievance at the FCDC concerning the opening of
his legal mail. He claimed that he had received two envelopes marked “special opening” that
had been opened outside of his presence by persons unknown to him prior to his receipt.
[Record No. 1-1, p. 36] On March 7, 2014, Officer West responded to Jackson’s grievance,
finding that it contained insufficient information. [Id., p. 37] For appeal purposes, Jackson
was provided with a copy of the jail’s response. [Id.] Jackson did not appeal.
Jackson should have filed a § 1983 action alleging this constitutional rights violation
no later than March 8, 2015, one year after the FCDC’s response that his grievance contained
insufficient information. However, Jackson did not file this § 1983 complaint until April 6,
2015, nearly one month after the one-year statute of limitations had expired. Thus, the face
of Jackson’s Complaint also demonstrates that his First Amendment claim is barred by
Kentucky’s one-year statute of limitations. Accordingly, it is hereby
ORDERED as follows:
1.

Plaintiff Levar Jackson’s Complaint [Record No. 1], filed under 42 U.S.C. §
1983, is DISMISSED because all claims raised therein are time-barred.

2.

This matter is DISMISSED and STRICKEN from the Court’s docket.

3.

A corresponding Judgment will be entered this date.

This 3rd day of September, 2015.

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