Moler v. Lawson et al

Filing 32

MEMORANDUM OPINION & ORDER GRANTING MOTION TO DISMISS CLAIMS ONE AND TWO OF AMENDED COMPLAINT: 1. The Motion to Dismiss filed by Defendants Jones, Cimarrosa, and Lynch [R. 27 ] is GRANTED and Moler's Eighth Amendment claims alleged in Claim One of Molers Amended Complaint [R. 12 ] against Defendants Jones and Cimarrosa and in Claim Two against Defendant Lynch are DISMISSED WITH PREJUDICE. 2. Jones, Cimarrosa, and Lynch are DISMISSED AS PARTIES. The only remaining claim is Moler&# 039;s FTCA claim against the United States. 3. This matter is REFERRED to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) to conduct all pretrial proceedings, including preparing proposed findings of fact and conclusions of law on any dispositive motions. 4. The Clerk of the Court shall ASSIGN this matter to a Magistrate Judge. Signed by Judge Claria Horn Boom on 02/16/2021.(KJA)cc: COR and Arthur Flemming Moler by US Mail

Case: 6:19-cv-00204-CHB-MAS Doc #: 32 Filed: 02/16/21 Page: 1 of 12 - Page ID#: 461

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
ARTHUR FLEMMING MOLER,
Petitioner,
v.
S. LYNCH, et al.,
Respondents.

)
)
)
Civil Action No. 6:19-CV-204-CHB
)
)
)
) MEMORANDUM OPINION AND ORDER
)
GRANTING MOTION TO DISMISS
) CLAIMS ONE AND TWO OF AMENDED
)
COMPLAINT
*** *** *** ***

Plaintiff Arthur Flemming Moler is a former federal prisoner currently residing in
Sterrett, Alabama. Proceeding without an attorney, Moler previously filed an Amended
Complaint [R. 12] bringing claims against prison officials at the United States Penitentiary
(“USP”) McCreary pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2670 et seq. (“FTCA”)
and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). [R. 12] In a prior
Order, the Court dismissed a portion of Moler’s claims (as well as the defendants against whom
these claims were alleged), but directed service of process upon several defendants. [R. 16] The
order directed the United States to respond to Moler’s allegations of negligence under the FTCA,
Defendants Rhonda Jones and Tara Cimarrosa to respond to the Eighth Amendment claim as
alleged in Claim One, and Defendant S. Lynch to respond to the Eighth Amendment claim as
alleged in Claim Two. [R. 16]
Defendants Jones, Cimarrosa, and Lynch, through counsel, have filed a Motion to
Dismiss Moler’s Eighth Amendment claims against them as untimely. [R. 27] Moler has filed a

-1-

Case: 6:19-cv-00204-CHB-MAS Doc #: 32 Filed: 02/16/21 Page: 2 of 12 - Page ID#: 462

Response [R. 30], and the Defendants have filed a Reply. [R. 31] Thus, this matter has been fully
briefed and is ripe for review.
I.
Moler’s Amended Complaint relates to the medical care that he received while he was
incarcerated at USP McCreary. [R. 12] As labeled by Moler, “Claim One” of his Amended
Complaint relates to medical care he received for his diabetes, specifically, the administration of
his insulin. Id. at 4–5. Moler explains that he has Type II diabetes and relies upon insulin. He
further alleges that, despite being aware that the proper administration time for insulin is 30
minutes prior to meals, medical staff at USP McCreary often did not administer his insulin
within the acceptable time ranges. Id. He states that “in his view,” due to the improper care for
his diabetes, he has now been diagnosed with chronic kidney disease. Moler alleges that the
insulin shots were administered per the instructions of HSA Jones (whom he claims is
responsible for setting the schedule for the administration of his insulin) and Assistant HSA
Cimarrosa (whom he claims instructed the nurses). Based on these factual allegations, he alleges
claims against Jones and Cimarrosa for acting with deliberate indifference toward his serious
medical needs in violation of his Eighth Amendment rights. Id.
“Claim Two” of Moler’s Amended Complaint relates to the dental care that he received
at USP McCreary, specifically his allegation that he was denied dentures. Moler alleges that
Defendant dentist Joseph Lynch treated Moler upon his arrival at USP McCreary in August
2015. [R. 12, p. 6] Moler further states that he had zero teeth and required dentures to chew his
food and maintain a balanced diet for his diabetes. Moler states that he asked Lynch if he could
have his dentures sent from home to Lynch for inspection and Lynch said no. He further states
that Lynch was aware of Moler’s diabetes. According to Moler, Lynch stated that Moler had to

-2-

Case: 6:19-cv-00204-CHB-MAS Doc #: 32 Filed: 02/16/21 Page: 3 of 12 - Page ID#: 463

be incarcerated for a year before they could start on his dentures. Despite allegedly being added
to a list for dentures in March 2016, Moler did not receive them, which he claims contributed to
his development of chronic kidney disease. Based on these factual allegations, Claim Two
alleges that Lynch acted with deliberate indifference to Moler’s serious medical needs in
violation of the Eighth Amendment.
II.
A.
Individual Defendants Cimarrosa, Jones, and Lynch have moved to dismiss Moler’s
Eighth Amendment claims against them pursuant Federal Rule of Civil Procedure 12(b)(6),
arguing that these claims are barred by the applicable statute of limitations. [R. 27] A motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the plaintiff’s complaint.
Gardner v. Quicken Loans, Inc., 567 F. App’x 362, 364 (6th Cir. 2014). When addressing a
motion to dismiss, the Court views the complaint in the light most favorable to the plaintiff and
accepts as true all “well-pleaded facts” in the complaint. D’Ambrosio v. Marino, 747 F.3d 378,
383 (6th Cir. 2014). Because Moler is proceeding without the benefit of an attorney, the Court
reads his complaint to include all fairly and reasonably inferred claims. Stanley v. Vining, 602
F.3d 767, 771 (6th Cir. 2010).
While the sufficiency of the complaint is generally tested with reference only to the face
of the complaint itself, Burns v. United States, 542 F. App’x 461, 466 (6th Cir. 2013), this
includes documents attached to the complaint or incorporated into the complaint by reference.
See, e.g., Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[On motion to
dismiss,] courts must consider the complaint in its entirety, as well as other sources courts
ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents

-3-

Case: 6:19-cv-00204-CHB-MAS Doc #: 32 Filed: 02/16/21 Page: 4 of 12 - Page ID#: 464

incorporated into the complaint by reference, and matters of which a court may take judicial
notice.”); Cates v. Crystal Clear Techs., LLC, 874 F.3d 530, 536 (6th Cir. 2017) (“The law is
clear that [courts] may consider [a document] which was attached to the [c]omplaint . . . in
determining whether dismissal is proper.” (alterations in original)); Bassett v. Nat’l Collegiate
Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (“When a court is presented with a Rule
12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, public records,
items appearing in the record of the case and exhibits attached to defendant’s motion to dismiss
so long as they are referred to in the Complaint and are central to the claims contained therein.”).
B.
Moler’s Eighth Amendment claims against the individual Defendants are brought
pursuant to Bivens, which held that an individual may “recover money damages for any
injuries . . . suffered as a result of [federal] agents’ violation of” his constitutional rights. Bivens
403 U.S. at 397. Because the remedy afforded in a Bivens action is entirely judge-made, there is
no statutory limitations period. Instead, federal courts apply the most analogous statute of
limitations from the state where the events occurred. Johnson v. Memphis Light Gas & Water
Div., 777 F.3d 838, 843 (6th Cir. 2015). The events about which Moler 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 Cty. Gov’t, 543 F.
App’x 499, 501 (6th Cir. 2013); Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003)
(“Bivens claims have a one-year statute of limitations under Kentucky law.”). Thus, to be timely,
Moler must have filed his Complaint asserting his constitutional Bivens claims within one year
from the date on which those claims accrued.

-4-

Case: 6:19-cv-00204-CHB-MAS Doc #: 32 Filed: 02/16/21 Page: 5 of 12 - Page ID#: 465

While state law provides the statute of limitations to be applied, when a Bivens claim
accrues is a question of federal law. Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 183 (6th Cir.
1990). Under federal law, a claim accrues when the plaintiff knows, or has reason to know, of
the injury that forms the basis for the action. Ruff v. Runyon, 258 F.3d 498, 500 (6th Cir. 2001).
Where the operative facts are not in dispute, the Court determines as a matter of law whether the
statute of limitations has expired. Highland Park Ass’n of Bus. & Enters. v. Abramson, 91 F.3d
143 (Table), 1996 WL 382252 (6th Cir. July 3, 1996) (citing Hall v. Musgrave, 517 F.2d 1163,
1164 (6th Cir. 1975)); see also Fox v. DeSoto, 489 F.3d 227, 232 (6th Cir. 2007).
In their Motion, Defendants argue that Claim One (Jones and Cimarrosa’s failure to
administer Moler’s insulin within the appropriate time frames) accrued no later than June 29,
2017, the date that he signed a formal administrative remedy request complaining about the
untimely insulin injections. [R. 27, p. 4] 1 However, Moler’s Amended Complaint specifically
alleges that he pursued his administrative remedies regarding the timing of the administration of
his insulin through an administrative grievance (assigned Remedy ID No. 907537) filed a few
days earlier, on June 25, 2017. [R. 12, p. 14] 2 The Informal Resolution Form submitted by Moler
identifies his Complaint as follows: “Deliberate Medical Indifference to my diabetes care. Given
outside establish administrative times stated to me by HSA Jones. Over 50% (Fifty) of camp
insulin and pills are given outside these administrative time frames. Although even that is not

The Bureau of Prisons (“BOP”) employs a multi-tiered administrative grievance process. If a matter
cannot be resolved informally, the prisoner must file an Administrative Remedy Request Form (BP-9
Form) with the Warden, who has 20 days to respond. See 28 U.S.C. §§ 542.14(a), 542.18. If the prisoner
is not satisfied with the Warden’s response, he may use a BP-10 Form to appeal to the applicable
Regional Director, who has 30 days to respond. See §§ 542.15, 542.18. If the prisoner is not satisfied with
the Regional Director’s response, he may use a BP-11 Form to appeal to the General Counsel, who has 40
days to respond. See §§ 542.15, 542.18.
2
A copy of this administrative remedy request was attached to both Moler’s original Complaint [R. 1-1,
pp. 2–11] and referred to in his Amended Complaint [R. 12, p. 14 (referring to Remedy ID #907537)];
thus it may be considered by the Court on Defendants’ Motion to Dismiss.
1

-5-

Case: 6:19-cv-00204-CHB-MAS Doc #: 32 Filed: 02/16/21 Page: 6 of 12 - Page ID#: 466

optimal.” [R. 1-1, p. 2] As relief, he requests that the insulin be given at least during
administrative time frames, although preferably during the optimal times of 30–60 minutes prior
to eating meals. Id.
Thus, Moler was clearly aware of his constitutional injuries related to the improper
administration of his insulin when he submitted his informal remedy request. For this reason, the
Court finds that Moler’s Eighth Amendment claims against Defendants Jones and Cimarrosa
related to the administration of his insulin accrued, at the very latest, on June 25, 2017, the date
he submitted his first administrative remedy request claiming that his diabetic care was
inadequate.
With respect to Count Two (the Eighth Amendment claim against Defendant Lynch for
failure to provide dentures), Moler’s Amended Complaint alleges that he first began requesting
dentures from Dr. Lynch after his arrival at USP McCreary on or around August 12, 2015. [R.
12, p. 6] Moler states that he last inquired about getting dentures in March 2016. Id. His
Amended Complaint specifically alleges that he pursued his administrative remedies with respect
to this claim through an administrative grievance (assigned Remedy ID No. 912539) filed on
August 8, 2017. [R. 12, p. 14] 3 In the Informal Resolution Form related to this request (dated
August 8, 2017), Moler avers that he has not been seen for full dentures since his incarceration,
which he states is “cruel.” [R. 1-1, p. 21] He further states that “I understand that there is no ‘soft
food’ meals available here, so I find it even tougher to satisfy my diabetic sugar problems with
such a poor choice of food.” Id. As relief, he requests that the mouth-casting procedures begin so
that he may receive a set of full dentures. Id.

Documentation related to this administrative remedy request was attached to both Moler’s original
Complaint [R. 1-1, p. 21–29] and referred to in his Amended Complaint. [R. 12, p. 14 (referring to
Remedy ID #912539)]

3

-6-

Case: 6:19-cv-00204-CHB-MAS Doc #: 32 Filed: 02/16/21 Page: 7 of 12 - Page ID#: 467

Thus, Moler was clearly aware of his constitutional injuries related to Lynch’s failure to
provide dentures when he submitted this Informal Resolution Form on August 8, 2017. For this
reason, Court finds that Claim Two accrued, at the very latest, on August 8, 2017, the date that
he submitted his first administrative remedy request related to his claim.
When a claimant is required to exhaust remedies before bringing suit, the limitations
period is tolled while he or she does so, as long as the remedies are pursued diligently and in
good faith. Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000). With respect to Moler’s
administrative remedy request related to Claim One (No. 907537), his final administrative appeal
was denied in an Administrative Remedy Response dated November 2, 2017, and stamped
“Delivered to Inmate” on December 6, 2017. [R. 1-1, p. 11 (denying Moler’s Central Office
Administrative Remedy Appeal alleging that pill line and insulin line times are erratic)]. Moler’s
final administrative appeal related to Claim Two (No. 912539) was denied in an Administrative
Remedy Response dated November 27, 2017, and stamped “Delivered to Inmate” on December
19, 2017. [R. 1-1, p. 29 (denying Moler’s Central Office Administrative Remedy Appeal alleging
that the soft food that he is eating is bad for a diabetic’s blood sugar and requesting full upper
and lower dentures)]
Thus, giving Moler every possible benefit of the doubt by not starting the “clock” until he
filed his administrative remedy requests and then tolling the statute of limitations on his claims
until the date that he received the final denials of his administrative appeals, the limitations
period would begin running on December 6, 2017 with respect to Claim One, and on December
19, 2017 with respect to Claim Two. 4 Thus, to be considered timely, Moler was required to file
Of course, this also assumes that his claims accrued on the date that he filed his first administrative
remedy requests with respect to each claim, which is not technically accurate. However, Moler does not
allege the specific dates on which he claims each Defendant was deliberately indifferent to his medical
needs. Thus, the Court resorts to the date that he filed his administrative grievances, as Moler cannot

4

-7-

Case: 6:19-cv-00204-CHB-MAS Doc #: 32 Filed: 02/16/21 Page: 8 of 12 - Page ID#: 468

his Complaint at the very latest with respect to Claim One on or before December 6, 2018 and,
with respect to Claim Two, on or before December 19, 2018.
Moler did not file his original Complaint in this matter until August 21, 2019, over eight
months too late. It is true that Moler originally asserted his claims in a lawsuit filed on June 17,
2019. Moler v. Lawson, 6:19-cv-149-GFVT (E.D. Ky. July 31, 2019). However, even if the
Court were to determine that, under Fed. R. Civ. P. 15(c), Claims One and Two should relate
back to the date of Moler’s Complaint filed in his prior lawsuit and deem his Amended
Complaint to have been “filed” when the Complaint in that case was filed in June 2019, his
claims would still be untimely, as even this Complaint was filed approximately six months after
the expiration of the applicable one-year statute of limitations. Thus, Moler’s Eighth Amendment
Bivens claims alleged against Defendants Jones, Cimarrosa, and Lynch in Claims One and Two
are untimely. Accordingly, Defendants’ Motion will be granted and these claims will be
dismissed.
C.
In his response, Moler argues that, rather than accruing on the dates that he was denied
medical care, his claims did not accrue until he learned of his diagnosis of chronic kidney disease
on November 30, 2018. [R. 30, pp. 2–3] Moler then characterizes his claims as alleging that,
upon learning of his diagnosis, he discovered that the Bureau of Prisons (“BOP”) was fully
aware of his chronic kidney disease dating back to around June or July of 2017, but medical staff
took no action and did not inform Moler of his diagnosis. Id. However, this is not the claim that
Moler pleaded in Claims One and Two. In his Amended Complaint, Moler is clear that Claim
One alleges that Defendants Jones and Cimarrosa violated his Eighth Amendment rights by
claim that he was not aware of his constitutional injuries by the dates that he filed grievances related to
his “deliberate indifference” claims.
-8-

Case: 6:19-cv-00204-CHB-MAS Doc #: 32 Filed: 02/16/21 Page: 9 of 12 - Page ID#: 469

consistently failing to ensure that Moler was provided insulin at the proper time, which Moler
states is 30 minutes prior to his meals. [R. 12, pp. 4–5] Indeed, this is also the claim that Moler
identified that he exhausted through the BOP’s administrative grievance process prior to filing
his Complaint. [See R. 12, p. 14; R. 1-1, pp. 2–11] In Claim Two, Moler alleges that Lynch
failed to provide him dentures after his request in 2016 despite being aware that Moler needed
dentures for nutritional purposes. [R. 12, p. 6] This is also the claim related to his dental care that
Moler alleges that he exhausted prior to filing his Complaint. [R. 12, p. 14; R. 1-1, pp. 21–29] To
be sure, Moler may not bring new claims against the defendants in response to their Motion to
Dismiss. See Bates v. Green Farms Condo. Ass’n, 958 F.3d 470, 483 (6th Cir. 2020) (“Plaintiffs
cannot . . . amend their complaint in an opposition brief or ask the court to consider new
allegations (or evidence) not contained in the complaint.”); Campbell v. Univ. of Louisville, 862
F. Supp. 2d 578, 583 (W.D. Ky. 2012) (“A plaintiff may not amend his complaint through
arguments in his brief in opposition to a motion for summary judgment.”) (quoting Shanahan v.
City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996)).
Moreover, Moler’s argument that his constitutional claims did not accrue until the full
extent of his injuries were known, or until he was diagnosed with chronic kidney disease, is
contrary to well-established federal law. Rather, Moler’s Bivens claims alleging deliberate
indifference to his serious medical needs in violation of his Eighth Amendment rights accrued on
the date of his constitutional injuries, that is, the date that he knew (or should have known) that
he was allegedly denied adequate health care, not the later date when the full extent of his
injuries were reflected in his diagnosis of chronic kidney disease. Hawkins v. Spitters, 79 F.
App’x 168, 169 (6th Cir. 2003) (finding that Eighth Amendment claims based on denial of
requests for sleep evaluation accrued when these requests were denied, not years later when

-9-

Case: 6:19-cv-00204-CHB-MAS Doc #: 32 Filed: 02/16/21 Page: 10 of 12 - Page ID#: 470

plaintiff was actually diagnosed with sleep apnea); Hermansen v. Schickel, 202 F.3d 268 (Table),
1999 WL 1282438, at *1 (6th Cir. Dec. 27, 1999) (finding prisoner’s cause of action based on
allegations of deliberate indifference to medical needs “accrued on the date he was denied
medical care . . . even though the full extent of his injury was not known until later”) (citing
Drake v. B.F. Goodrich Co., 782 F.2d 638, 641 (6th Cir. 1986)). Indeed, “[u]nder federal law, a
cause of action generally accrues when the plaintiff has reason to know of his injury . . . or at the
time of the defendants’ action, and not when the consequences become most painful.” Frasure v.
Shelby Cty. Sheriff’s Dep’t, 4 F. App’x 249, 250 (6th Cir. 2001).
Moler was clearly aware of his constitutional injuries in 2017, as he submitted
administrative grievances specifically claiming deliberate indifference based on the timing of his
insulin and the failure to provide him with dentures. Howard v. Rea, 111 F. App’x 419, 421 (6th
Cir. 2004) (finding constitutional claims accrued on dates that plaintiff was aware that his
constitutional rights may have been violated, as reflected by the administrative grievances he
filed). Contrary to Moler’s suggestion that he did not have a “complete cause of action” until the
full extent of his injuries were known, a plaintiff has a “complete and present cause of action,”
when “the plaintiff can file suit and obtain relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007)
(quoting Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S.
192, 201 (1997)). This is true, even though further consequential damages may later accrue
attributable to the wrongful conduct. As explained in Wallace (a case alleging a constitutional
unlawful arrest claim against police detectives),
Even assuming, however, that all damages for detention pursuant to legal process
could be regarded as consequential damages attributable to the unlawful arrest, that
would not alter the commencement date for the statute of limitations. “Under the
traditional rule of accrual . . . the tort cause of action accrues, and the statute of
limitations commences to run, when the wrongful act or omission results in
damages. The cause of action accrues even though the full extent of the injury is
-10-

Case: 6:19-cv-00204-CHB-MAS Doc #: 32 Filed: 02/16/21 Page: 11 of 12 - Page ID#: 471

not then known or predictable.” 1 C. Corman, Limitation of Actions § 7.4.1, at 526–
27 (1991) (footnote omitted); see also 54 C.J.S. Limitations of Actions § 112, at 150
(2005). Were it otherwise, the statute would begin to run only after a plaintiff
became satisfied that he had been harmed enough, placing the supposed statute of
repose in the sole hands of the party seeking relief.
Wallace, 549 U.S. at 39 (alteration in original).
Thus, for statute of limitations purposes, the “clock” starts on the date that Moler’s
constitutional injury occurred, regardless of whether the full extent of his injuries were not
known until later. See Hall v. Spencer County, 583 F.3d 930, 933 (6th Cir. 2009) (“The cause of
action accrues on the date of the injury to the person even though the extent of the injury is not
known until later.”); Kelly v. Burks, 415 F.3d 558, 561 (6th Cir. 2005) (holding the statute of
limitations begin to run when plaintiff had reason to know of the alleged constitutional injury).
Because Moler did not file his Complaint alleging his Eighth Amendment claims against Jones,
Cimarrosa, and Lynch until well after the expiration of the one-year statute of limitations
applicable to those claims, his claims are untimely.
For all of these reasons, the Motion to Dismiss filed by Jones, Cimarrosa, and Lynch will
be granted and Moler’s Eighth Amendment claims against them as alleged in Claims One and
Two of his Amended Complaint will be dismissed.
III.
With respect to Moler’s remaining FTCA claim against the United States alleging
negligence by federal employees, the United States has filed an Answer to this claim. [R. 28]
The Court will therefore refer this matter to a United States Magistrate Judge for pretrial
management.
Accordingly, IT IS ORDERED as follows:

-11-

Case: 6:19-cv-00204-CHB-MAS Doc #: 32 Filed: 02/16/21 Page: 12 of 12 - Page ID#: 472

1. The Motion to Dismiss filed by Defendants Jones, Cimarrosa, and Lynch [R. 27] is
GRANTED and Moler’s Eighth Amendment claims alleged in Claim One of Moler’s
Amended Complaint [R. 12] against Defendants Jones and Cimarrosa and in Claim
Two against Defendant Lynch are DISMISSED WITH PREJUDICE.
2.

Jones, Cimarrosa, and Lynch are DISMISSED AS PARTIES. The only remaining
claim is Moler’s FTCA claim against the United States.

3. This matter is REFERRED to a United States Magistrate Judge pursuant to 28
U.S.C. § 636(b) to conduct all pretrial proceedings, including preparing proposed
findings of fact and conclusions of law on any dispositive motions.
4. The Clerk of the Court shall ASSIGN this matter to a Magistrate Judge.
This the 16th day of February, 2021.

-12-