Portee v. Holland et al
Filing
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MEMORANDUM OPINION & ORDER: 1) Portees complaint [R. 1] is DISMISSED with prejudice; 2) The Court will enter a judgment contemporaneously with this order; and 3) This matter is STRICKEN from the docket. Signed by Judge Gregory F. VanTatenhove on 6/8/2018.(RC)cc: COR, paper copy of Order to pro se plaintiff via U.S. Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
DANIEL C. PORTEE,
Plaintiff,
V.
J. C. HOLLAND, et al.,
Defendants.
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Civil Action No. 6:16-281-GFVT
MEMORANDUM OPINION
&
ORDER
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Inmate Daniel Portee has filed a pro se complaint asserting civil rights claims against
federal officials pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971). [R. 1.] This matter is before the Court to conduct an initial
screening of Portee’s complaint pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A. Davis v. Prison
Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).
I
In his complaint, Portee alleges that in June 2014, while confined at the Federal
Correctional Institution in Pekin, Illinois, he suffered injuries to his head, elbow, and back when
he fell while walking from a transport van. Doctor Lemons at that facility prescribed Tylenol 3
and ibuprofen for pain management as well as Gabapentin, an anti-seizure medication. Over the
next six months, Lemons varied the dosages for those medications to address Portee’s thencurrent state of health and his rectal bleeding. [R. 1 at 3-4, 5.]
In December 2014, Portee was transferred from FCI-Pekin to the United States
Penitentiary – McCreary in Pine Knot, Kentucky. Portee’s complaint sets forth extensive
allegations that between December 2014 and February 2015 medical staff at USP-McCreary
falsified his medical records, unjustifiably reduced the dosages of his pain medications, and
failed to provide medical care when requested. Specifically, Portee alleges that Nurse
Practitioner Christopher Davis falsified his records by stating that Dr. Lemon’s pre-existing
twenty-one (21) day prescription for Tylenol 3 was for only three days, and that shortly after his
arrival Dr. Jude Onuoha discontinued the pain medications prescribed for the fall he had suffered
six months before. He further alleges that Health Services Administrator Rhonda Jones directed
him to address concerns regarding his pain management at a chronic care appointment rather
than through sick call. Finally, Portee states that in January 2015 Nurse Practitioner Christopher
Davis denied his request to use a wheelchair and instead directed him to use his walker to
ambulate. [R. 1 at 4-8.]
Portee indicates that Warden J. C. Holland denied a grievance regarding his health care in
February 2015. Portee further states that he raised all of the concerns and allegations set forth
above regarding his medical care in administrative appeals to the Bureau of Prisons’ Regional
Office and Central Office, but those appeals were denied in March 2015 and August 2015,
respectively. [R. 1 at 8-9.] In his complaint, Portee contends that the conduct described above
by Davis, Onuoha, Jones, and Holland constituted deliberate indifference to his serious medical
needs in violation of the Eighth Amendment to the United States Constitution. [R. 1 at 9-15.]
Next, Portee indicates that in January 2015 he received several responses from the BOP
to inmate grievances and appeals he had filed at FCI-Pekin before his transfer. Because his
transfer had delayed his receipt of those responses, the time to appeal had already passed. Portee
therefore sought written verification of the delay in receipt from Unit Secretary L. Foster. Portee
alleges that Foster initially stamped each document with the date it was actually received at USPMcCreary. When this proved insufficient to satisfy the grievance administrator that Portee’s
delayed appeals should be deemed timely filed, Foster provided Portee with a written letter of
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verification with respect to a regional appeal (which was ultimately accepted as timely), but later
refused to do so with respect to three appeals to the Central Office.
Portee also alleges that while Unit Manager H. Anderson initially sought to assist him
with obtaining the required staff verification, in May 2015 he intentionally excluded Portee from
an Open House – which was available only to inmates with last names starting with the letters A
through M – to prevent him from complaining about Foster’s actions. Portee states that
Anderson also refused to author and sign a letter regarding the delayed receipt. Anderson later
explained that Portee had previously been provided with multiple copies of a staff letter verifying
Portee’s delayed receipt of his grievance responses. [R. 1 at 16-20.] In August 2015, another
BOP officer provided Portee with the staff verification letter he had sought from Foster. [R. 1 at
30.]
In June 2015, Portee filed a grievance regarding the actions of Foster and Anderson. This
grievance was denied by the warden in June 2015. Portee appealed to the Regional Office in
July 9, 2015, but the appeal was denied on July 31, 2015. Portee then appealed to the Central
Office on August 24, 2015; the Central Office did not formally deny his appeal until September
14, 2016. In his complaint, Portee contends that Foster and Anderson’s actions violated his due
process rights under the Fifth Amendment to the Constitution of the United States. He further
contends that his exclusion from the Open House constituted retaliation by Anderson in violation
of his rights under the First Amendment. [R. 1 at 21-24.]
Third, Portee alleges that in August 2015 Unit Counselor N. Keith was unable to provide
him with an “Inmate History Chart” because Keith did not understand what Portee was
requesting. Portee also states that in April 2015 Foster issued a “fabricated and retaliatory”
Incident Report against him for Insolence when he became belligerent and refused to leave her
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office, for which he was found guilty. The Regional Office rejected Portee’s appeal of his
disciplinary conviction in July 2015, but gave him ten days to resubmit a proper appeal. Portee
alleges that he did not receive the Regional Office’s rejection notice until six days later, and
Anderson and Keith refused to provide him with a letter so indicating because neither personally
handed the rejection letter to him. Portee filed an explanation for the delay with the Regional
Office without staff verification, but the Regional Office rejected that as well. Portee appealed
to the Central Office, which likewise rejected his appeal in September 2015. In his complaint,
Portee alleges that Foster retaliated against him by filing a false Incident Report in violation of
his rights under the First Amendment, and that Anderson and Keith violated his due process
rights under the Fifth Amendment by preventing him from appealing his disciplinary conviction.
[R. 1 at 21, 24-31.]
II
Although not named in the caption of the complaint as a defendant [R. 1 at 1], Portee
later identified Assistant Health Services Administrator T. Cimarossa as a defendant. [R. 1 at 2.]
However, he makes no factual allegations against her in the body of the complaint nor does he
assert any claim against her, and any claim against this defendant will thus be dismissed.
Portee also names Warden J. C. Holland as a defendant, but alleges only that he denied
grievances he filed regarding his health care. [R. 1 at 9.] He also broadly contends that Holland
failed to ensure that the “overall medical system in place at USP McCreary ... [met] the health
needs of the population.” [R. 1 at 11.] These allegations fail to state a claim under the Eighth
Amendment. In order to recover against a given defendant in a Bivens action, the plaintiff “must
allege that the defendant [was] personally involved in the alleged deprivation of federal rights.”
Nwaebo v. Hawk-Sawyer, 83 F. App’x 85, 86 (6th Cir. 2003) (citing Rizzo v. Goode, 423 U.S.
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362, 373-77 (1976)). The mere fact that the defendant possessed the authority to supervise those
directly involved is not, without more, enough. Respondeat superior is not an available theory of
liability. Polk County v. Dodson, 454 U.S. 312, 325-26 (1981).
Accordingly, when a warden merely responds to an inmate’s grievance regarding the
health care he is receiving, the warden’s limited role in responding is not a sufficient basis to
impose liability for constitutional torts. Alder v. Corr. Medical Services, 73 F. App’x 839, 841
(6th Cir. 2003) (“The denial of the grievance is not the same as the denial of a request to receive
medical care.”). Rather, “[i]f a prisoner is under the care of medical experts . . . a non-medical
prison official will generally be justified in believing that the prisoner is in capable hands.”
Spruill v. Gillis, 372 F.3d 218, 236 (3rd Cir. 2004); see also Brock v. Wright, 315 F.3d 158 (2d
Cir. 2003) (absent evidence that warden was medically trained or independently understood
allegedly adverse consequences of regional medical director’s decision not to refer prisoner for
outside treatment, warden was not liable for deliberate indifference to prisoner’s medical needs
merely for adopting medical director’s decision); Estate of Young v. Martin, 70 F. App’x 256,
260-61 (6th Cir. 2003).
Portee’s first set of claims asserts deliberate indifference to his serious medical needs by
P.A. Davis, Dr. Onuoha, and HSA Jones. However, these claims were not timely asserted. The
Court may dismiss a claim upon initial screening if it is plainly barred by the applicable
limitations period. Cf. Jones v. Bock, 549 U.S. 199, 215 (2007) (“If the allegations, for example,
show that relief is barred by the applicable statute of limitations, the complaint is subject to
dismissal for failure to state a claim.”); Franklin v. Fisher, 2017 WL 4404624, at *2 (6th Cir.
2017) (“The district court properly dismissed Franklin’s complaint for failure to state a claim
upon which relief may be granted because it is obvious from the face of her complaint that
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almost all of her claims are barred by the applicable statute of limitations.”); Castillo v. Grogan,
52 F. App’x 750, 751 (6th Cir. 2002) (“When a meritorious affirmative defense based upon the
applicable statute of limitations is obvious from the face of the complaint, sua sponte dismissal
of the complaint as frivolous is appropriate.”).
Portee’s claims accrued in December 2014 and January 2015 when he became aware of
the injury which forms the basis for his claims – the discontinuation of his pain medications and
the refusal to provide him with a wheelchair. Estate of Abdullah ex rel. Carswell v. Arena, 601
F. App’x 389, 393-94 (6th Cir. 2015) (“Once the plaintiff knows he has been hurt and who has
inflicted the injury, the claim accrues.”) (internal quotation marks omitted) (citing United States
v. Kubrick, 444 U.S. 111, 122 (1979)). Section 1983 does not provide a statutory limitations
period; instead, federal courts apply the most analogous statute of limitations from the state
where the events occurred. Wilson v. Garcia, 471 U.S. 261, 268-71 (1985). The events about
which Portee complains occurred in Kentucky; therefore, Kentucky’s one-year statute of
limitations for asserting personal injuries applies. Ky. Rev. Stat. § 413.140(1)(a); Hornback v.
Lexington-Fayette Urban Co. Gov’t., 543 F. App’x 499, 501 (6th Cir. 2013); Mitchell v.
Chapman, 343 F.3d 811, 825 (6th Cir. 2003).
Before he could file suit, however, Portee was required to exhaust his administrative
remedies available under the BOP’s Inmate Grievance Program. 42 U.S.C. § 1997e(a); Jones v.
Bock, 549 U.S. 199, 205-07 (2007). When a claimant is required to exhaust such remedies
before bringing suit, the limitations period is tolled while he or she does so, as long as such
remedies are pursued diligently and in good faith. Brown v. Morgan, 209 F.3d 595, 596 (6th Cir.
2000). The limitations period was therefore tolled from February 2015 to August 2015, by
which time the Central Office had issued a final denial of Portee’s appeal. [R. 1 at 9.] Portee
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was therefore required to file suit by some point in July or August 2016. Because Ware did not
file suit until December 2016, his claims are time-barred and must be dismissed. Dellis v. Corr.
Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001).
In another portion of his complaint, Portee suggests that he filed another grievance
regarding at least some portion of these claims. He filed his appeal to the Central Office in that
grievance on May 20, 2015, and alleges that he never received any response to it. [R. 1 at 1314.] But by regulation the Central Office is required to respond to an appeal within forty days,
and its failure to respond within that time frame is deemed a constructive denial of the appeal.
28 C.F.R. § 542.18. Accordingly, equitable tolling of the limitations period ceased forty days
later on June 30, 2015. Jordan v. U.S. Dept. of Justice, No. 7: 15-CV-138-KKC (E.D. Ky.
2015), aff’d, No. 17-5467 (6th Cir. Mar. 7, 2018) (holding that equitable tolling ceases once the
time period for the agency to respond has expired under its regulations) (citing Risher v. Lappin,
639 F.3d 236, 240 (6th Cir. 2011) (“It is well established that ‘administrative remedies are
exhausted when prison officials fail to timely respond to a properly filed grievance.’”)); Burley v.
Federal Bur. of Prisons, No. 6: 15-04-DCR, 2015 WL 3973076, at *3 (E.D. Ky. June 30, 2015).
The failure of the BOP to respond to this grievance therefore did not extend equitable tolling
indefinitely, and Portee’s claims are time barred.
Portee’s second set of claims assert that Foster and Anderson violated his rights under the
Due Process Clause of the Fifth Amendment. Portee contends that the conduct of Foster and
Anderson from January to April 2015 interfered with his ability to exhaust his administrative
remedies by their alleged refusal to provide adequate staff verification of his delayed receipt of
the BOP’s responses to his grievance appeals. [R. 1 at 16-20; 23-24.] However, it is wellestablished that inmates have no constitutional right to have a grievance process at all, and thus
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they have no due process right to one that functions in a manner the inmate deems efficient and
timely. Argue v. Hoffmeyer, 80 F. App’x 427, 430 (6th Cir. 2003) (“[T]here is no inherent
constitutional right to an effective prison grievance procedure.”) (citing Hewitt v. Helms, 459
U.S. 460, 467 (1983)); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Flick v. Alba,
932 F.2d 728, 729 (8th Cir. 1991) (federal grievance regulations providing for administrative
remedy procedure do not create liberty interest in access to that procedure); McCalla v. United
States, No. 5: 15-CV-387-JMH, 2016 WL 1698295, at *6 (E.D. Ky. Apr. 27, 2016). These
allegations therefore fail to state a claim under the Due Process Clause, and must be dismissed.
Portee also alleges that Anderson retaliated against him in violation of the First
Amendment. [R. 1 at 18-19, 23, 24-25.] A viable claim of retaliation is shown where the
plaintiff engaged in constitutionally-protected conduct, the defendant took adverse action against
the plaintiff at least in part because of that conduct, and the responsive action was sufficiently
adverse that it would deter a person of ordinary firmness from continuing to engage in the
protected conduct. Thaddeus-X v. Blatter, 175 F. 3d 378, 394 (6th Cir. 1999).
Anderson’s alleged action in excluding Portee – along with half the inmate population –
from three particular meetings of the Open House is not, as a matter of law, sufficiently hostile,
antagonistic, or severe so as to deter a person of ordinary firmness from continuing to engage in
the protected conduct. “It would trivialize the First Amendment to hold that harassment for
exercising the right of free speech was always actionable no matter how unlikely to deter a
person of ordinary firmness from that exercise.” Evenstad v. Herberg, 994 F. Supp. 2d 995,
1001 (D. Minn. 2014) (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). The
“ordinary firmness” test is intended “to weed out trivial matters from those deserving the time of
the courts as real and substantial violations of the First Amendment.” Santiago v. Blair, 707
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F.3d 984, 992 (8th Cir. 2013). Concrete actions such as punishing an inmate with disciplinary
infractions, segregation, loss of a prison job, or transfer to a less desirable prison can have a
sufficient deterrent effect upon the inmate to satisfy the “ordinary firmness” test. Hill v. Lappin,
630 F. 3d 468, 473 (6th Cir. 2010); King v. Zamiara, 150 F. App’x 485, 494 (6th Cir. 2005);
Herron v. Harrison, 203 F.3d 410, 416 (6th Cir. 2000). But minor harassment and even casual
threats of a non-severe nature, while unprofessional, fall far short of crossing the threshold into
actionable retaliation. See Dunbar v. Barone, 487 F. App’x 721, 723-24 (3d Cir. 2012)
(“[V]erbal threats and few gestures of racial harassment Dunbar allegedly encountered are not
sufficiently adverse to support a retaliation claim.”); Burgos v. Canino, 358 F. App’x 302, 306
(3d Cir. 2009) (citing Maclean v. Secor, 876 F. Supp. 695, 699 (E.D. Pa. 1995)). Here, Portee
had ample other means to voice his concerns and to seek relief. The Court notes parenthetically
that while the “ordinary firmness” test is an objective rather than a subjective one, it is plain that
Anderson’s alleged conduct did not deter Portee in the slightest from engaging in
constitutionally-protected conduct: he continued, long after the Open House was held without
him, to demand new documentation establishing that his late-filed appeals should be deemed
timely. [See R. 1 at 19-24.]
Portee’s due process and retaliation claims against Foster and Anderson are also barred
by the statute of limitations. Portee states that he filed grievances regarding their conduct in June
2015; that he filed his final appeal to the Central Office on August 24, 2015; and that the Central
Office did not formally deny his appeal until September 14, 2016. [R. 1 at 20-22] As noted
above, the one-year statute of limitations found in Ky. Rev. Stat. § 413.140(1)(a) applies to these
claims, and the equitable tolling to permit an inmate to exhaust administrative remedies
concluded forty days after Portee filed his Central Office appeal. 28 C.F.R. § 542.18; Risher,
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639 F.3d at 240. That date arrived on October 4, 2015, and Portee’s failure to file suit on or
before October 4, 2016 renders these claims time barred.
Portee’s third set of claims contends that in April 2015 Foster retaliated against him by
charging him with Insolence – a disciplinary offense for which he was convicted and has failed
to obtain its reversal – in violation of the First Amendment. It also includes his claim that in July
2015 Anderson and Keith violated his due process rights by refusing to provide him with a letter
indicating that he received a grievance rejection late, resulting in the rejection of his appeal of his
disciplinary conviction. [R. 1 at 25-26, 29-31]
The filing of an allegedly false disciplinary report against an inmate can certainly be
sufficiently serious to implicate First Amendment rights. Hill, 630 F. 3d at 472-74. However,
Portee’s retaliation claim against Foster is barred by the statute of limitations. Even assuming
that the BOP’s rejection of his Central Office appeal was improper, Portee exhausted this claim
no later than September 18, 2015. [R. 1 at 30.] His failure to file suit until December 2016,
more than one year after that date, renders this claim time-barred, and it must be dismissed.
Dellis, 257 F.3d at 511.
While Portee set forth at length his efforts to exhaust his administrative remedies with
respect to his other claims, he does not state or suggest that he filed any separate inmate
grievance to complain of the conduct of Anderson and Keith with respect to his appeal of the
disciplinary sanction. [See R. 1 at 29-30.] Even assuming that he did so, and further that this
claim is timely asserted, his allegations fail to state a due process claim against these two
defendants for the same reason stated above: an inmate has no inherent constitutional right to an
effective grievance procedure. Cf. Alexander v. Vittitow, No. 17-1075, 2017 WL 7050641, at *3
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(6th Cir. Nov. 9, 2017); Walker v. Mich. Dept. of Corrections, 128 F. App’x 441, 445 (6th Cir.
2005); Carpenter v. Wilkinson, 205 F. 3d 1339 (6th Cir. 2000).
For each of the foregoing reasons, Portee’s complaint must be dismissed for failure to
state a claim.
Accordingly, it is ORDERED as follows:
1.
Portee’s complaint [R. 1] is DISMISSED with prejudice;
2.
The Court will enter a judgment contemporaneously with this order; and
3.
This matter is STRICKEN from the docket.
This the ____ day of May, 2018.
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