Hawkins v. USA et al
MEMORANDUM OPINION & ORDER re 18 MOTION to Dismiss by J. Helton or in the Alternative MOTION for Summary Judgment by J. Helton : (1) Plaintiffs Opposition to Defendants Response (Doc. # 28) is construed as a motion for leave to file a sur-reply and is GRANTED; (2) Defendants Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Doc. # 18) is GRANTED; (3) Plaintiffs Amended Complaint (Doc. # 9) is DISMISSED WITH PREJUDICE; (4) Any pending request for reli ef is DENIED AS MOOT; and (5) This matter is STRICKEN from the Courts active docket. A Judgment in favor of Defendant will be entered contemporaneously herewith.. Signed by Judge David L. Bunning on 9/7/2021.(JMB)cc: COR and Colin Hawkins by US Mail Modified on 9/8/2021 (JMB).
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 20-135-DLB
MEMORANDUM OPINION AND ORDER
*** *** *** ***
Plaintiff Colin Hawkins is a federal inmate confined at the United States
Penitentiary (“USP”)-Beaumont in Beaumont, Texas. Proceeding without an attorney,
Plaintiff filed an amended complaint pursuant to Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971), alleging claims against Defendant J. Helton for violations
of Plaintiff’s Fifth and Eighth Amendment rights. (Doc. # 9).1 Defendant, by counsel, has
filed a Motion to Dismiss, or in the Alternative, for Summary Judgment. (Doc. # 18).
Plaintiff has filed a response (Doc. # 26) and Defendant has filed a reply. (Doc. # 27).
Thus, this matter has been fully briefed and is ripe for review.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff’s amended complaint arises from an incident that occurred while Plaintiff
was housed at USP-McCreary in Pine Knot, Kentucky. According to Plaintiff, he was
While Plaintiff’s original complaint also alleged claims against the United States, the
Federal Bureau of Prisons, Wade Thompson, and Gregory Kizziah, (Doc. # 1), these claims were
omitted from Plaintiff’s first amended complaint. (Doc. # 9). After the initial screening of Plaintiff’s
first amended complaint required by 28 U.S.C. § 1915(e)(2), 1915A, the Court dismissed the
claims against the earlier-named Defendants, but ordered that summons be issued and served
on Defendant J. Helton for a response to Plaintiff’s constitutional Bivens claims against him. (Doc.
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involved in a fist fight with another inmate on November 14, 2018. Plaintiff alleges that
Defendant (a Correctional Officer at USP-McCreary) responded to the fight, put Plaintiff
in a chokehold, allowed the other inmate to punch Plaintiff in the face and head,
repeatedly referred to Plaintiff using a racial slur, and continued to choke Plaintiff until
Plaintiff lost consciousness. (Doc. # 9). As a result of the incident, Plaintiff claims that
he has experienced mental, psychological, and emotional distress “due to the racial slurs
and the near death experience, and was also physically injured – resulting in pain and
suffering due to the force applied on my fractured spine.” (Doc. # 9 at 2-3).
Based on these allegations, Plaintiff brings claims against Defendant for violations
of his Fifth and Eighth Amendment rights. (Id. at 4). Plaintiff seeks compensatory
damages in the amount of $100,000.00 and punitive damages in the amount of
$100,000.00. (Id. at 8).
In his motion to dismiss or, in the alternative, motion for summary judgment,
Defendant argues that Plaintiff’s constitutional claims against him are barred by the
applicable one-year statute of limitations. (Doc. # 18-1). In response, Plaintiff concedes
that he became aware of his injuries on November 14, 2018 (the date of the incident).
However, Plaintiff argues that the statute of limitations did not begin to run on his claim
until June 21, 2019, the date that he claims that the Bureau of Prisons’ (“BOP”) response
to his Central Officer Administrative Remedy Appeal was delivered to him, and thus his
original complaint filed in this case was timely. (Doc. # 26). However, Plaintiff’s argument
is without merit and his complaint will be dismissed as untimely.
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Standard of Review
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 Plaintiff is proceeding
without the benefit of an attorney, the Court reads his complaint to include all fairly and
reasonably inferred claims. Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir.
Generally speaking, because a Rule 12(b)(6) motion considers only the allegations
in the complaint, such a motion “is an ‘inappropriate vehicle’ for dismissing a claim based
upon a statute of limitations.’” See Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459,
464 (6th Cir. 2013) (quoting Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547) (6th Cir.
2012)). However, “when ‘the allegations in the complaint affirmatively show that the claim
is time-barred . . . dismissing the claim under Rule 12(b)(6) is appropriate.’” Stein v.
Regions Morgan Keegan Select High Income Fund, Inc., 821 F.3d 780, 786 (6th Cir.
2016) (quoting Cataldo, 676 F.3d at 547) (other citation omitted) (alterations in original).
In such circumstances, if the defendant meets its initial burden to show that the statute of
limitations has run, “then the burden shifts to the plaintiff to establish an exception to the
statute of limitations.” Lutz, 717 F.3d at 464. See also Bishop v. Lucent Techs., Inc., 520
F.3d 516, 520 (6th Cir. 2008) (“When it affirmatively appears from the face of the
complaint that the time for bringing the claim has passed, the plaintiff cannot ‘escape the
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statute by saying nothing.’”) (quoting Hoover v. Langston Equip. Assocs., Inc., 958 F.2d
742, 744 (6th Cir. 1992)) (other citation omitted).
Moreover, in this case, Defendant moves both to dismiss and for summary
judgment, attaching and relying upon declarations extrinsic to the pleadings in support of
his motion. (Doc. # 18). Thus, the Court may treat Defendant’s motion to dismiss the
complaint as a motion for summary judgment under Rule 56. Fed. R. Civ. P. 12(d);
Wysocki v. Int’l Bus. Mach. Corp., 607 F. 3d 1102, 1104 (6th Cir. 2010). See also Ball v.
Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004) (where defendant moves both to
dismiss and for summary judgment, plaintiff is on notice that summary judgment is being
requested, and the court’s consideration as such is appropriate where the nonmovant
submits documents and affidavits in opposition to summary judgment).
A motion under Rule 56 challenges the viability of another party’s claim by
asserting that at least one essential element of that claim is not supported by legallysufficient evidence. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324-25
(1986). A party moving for summary judgment must establish that, even viewing the
record in the light most favorable to the nonmovant, there is no genuine dispute as to any
material fact and that the party is entitled to a judgment as a matter of law. Loyd v. St.
Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014). The burden then shifts to the
nonmoving party to “come forward with some probative evidence to support its claim.”
Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
However, in order to defeat a properly supported motion for summary judgment,
the party opposing the motion may not “rest upon mere allegation or denials of his
pleading,” but must present affirmative evidence supporting his claims. See Anderson v.
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Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986). If the responding party’s allegations
are so clearly contradicted by the record that no reasonable jury could adopt them, the
court need not accept them when determining whether summary judgment is warranted.
Scott v. Harris, 550 U.S. 372, 380 (2007).
Plaintiff’s Constitutional Bivens Claims are Untimely
Plaintiff’s amended complaint must be dismissed as untimely. Plaintiff’s claims 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. Wilson v. Garcia, 471 U.S. 261, 268-71 (1985). The events of Plaintiff’s
complaint 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). Thus, Plaintiff was required to bring his
constitutional Bivens claims within one year from the date on which his claim accrued.
Ky. Rev. Stat. § 413.140(1)(a).
While state law provides which statute of limitations applies, federal law controls
when a constitutional Bivens claim accrues. See LRL Props. v. Portage Metro Housing
Auth., 55 F.3d 1097, 1107 (6th Cir. 1995); McCune v. City of Grand Rapids, 842 F.2d
903, 905 (6th Cir. 1988); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). Under
federal law, a claim accrues when the plaintiff knows, or has reason to know, of the injury
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which forms the basis for the action. Friedman v. Estate of Presser, 929 F.2d 1151, 1159
(6th Cir. 1991). See also 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)); McCune, 842 F.2d at 905 (citing Sevier, 742 F.2d at
272) (“A plaintiff has reason to know of his injury when he should have discovered it
through the exercise of reasonable diligence.”).
Plaintiff does not dispute that he became aware of his injuries on November 14,
2018, the date of the incident alleged in his complaint. (Docs. # 9 at 3 and 26 at 1).
Where, as here, the operative facts are not in dispute, the Court may determine as a
matter of law whether the statute of limitations has expired. Highland Park Ass’n of
Businesses & Enters. v. Abramson, 91 F.3d 143 (Table) (6th Cir. 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). Because Plaintiff became aware of his injuries on November 14,
2018, his claims accrued (and the statute of limitations with respect to his claims began
running) on that date. Thus, Plaintiff had one year from that date – or until November 14,
2019 – to file his complaint. However, Plaintiff did not file his original complaint in this
case until June 18, 2020, well after the expiration of the one-year statute of
limitations. Ky. Rev. Stat. § 413.140(1)(a).2
Under the prison mailbox rule, an incarcerated plaintiff’s complaint is deemed filed on the
date that it is handed to a prison official for mailing to the court. Richard v. Ray, 290 F.3d 810,
812-13 (6th Cir. 2002) (extending the rule of Houston v. Lack, 487 U.S. 266 (1988) to civil
matters). Ordinarily, the Court presumes that this occurs on the date the complaint is
signed. Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008). Plaintiff signed his original complaint
on June 18, 2020. (Doc. # 1 at 10).
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In his response, Plaintiff argues that the statute of limitations on his claims did not
begin to run until he fully exhausted the available administrative remedies with respect to
his claims. (Doc. # 26). It is true that, before he could file suit, Plaintiff was required to
exhaust his administrative remedies available under the BOP’s Inmate Grievance
Program. 42 U.S.C. § 1997e(a).3 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).
However, contrary to Plaintiff’s contention, this does not mean that the limitations
period does not begin to run at all until the administrative grievance process is complete.
Rather, under federal law, “the statute of limitations begins to run once the plaintiff
becomes aware of the injury, but is tolled while the prisoner seeks redress through
administrative proceedings at the prison.” Proctor v. Applegate, 661 F. Supp. 2d 743,
761 (E.D. Mich. 2009). Thus, while the statute of limitations on Plaintiff’s constitutional
claims began to run on November 18, 2018, it was tolled while Plaintiff pursued his
administrative remedies. See Brown, 209 F.3d at 596 (“[T]he statute of limitations which
applied to Brown's civil rights action was tolled for the period during which his available
state remedies were being exhausted.”) (emphasis added) (citations omitted). See also
The BOP’s Inmate Grievance System requires a federal prisoner to first seek informal
resolution of any issue with staff. 28 C.F.R. § 542.13. 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 C.F.R. §§ 542.14(a) and 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 28 C.F.R. §§ 542.15 and 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 28 C.F.R. §§ 542.15 and
542.18. See also BOP Program Statement 1330.18 (Jan. 6, 2014).
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Gonzalez v. Hasty, 651 F.3d 318, 324 (2d Cir. 2011) (“[U]nder the rule we articulate today,
the applicable . . . statute of limitations is tolled only during that exhaustion period and not
during the period in between the accrual of those claims and when [Plaintiff] began the
administrative remedy process.”) (citing Brown, 209 F.3d at 596); Cuco v. Fed. Med. Ctr.Lexington, No. 05-CV-232-KSF, 2006 WL 1635668, at *25 (E.D. Ky. June 9, 2006), aff’d
and remanded, 257 F. App’x 897 (6th Cir. 2007) (“[T]he requirement that a prisoner must
first exhaust administrative remedies prior to bringing suit does not prevent a claim from
accruing; rather, the existence of that requirement acts to equitably toll the running of
the statute of limitations while the prisoner invokes and completes that administrative
In this case, Plaintiff claims that he began the administrative grievance process by
giving a completed BP-8 Form regarding his claims to his counselor on January 15, 2019.
(Doc. # 26 at 2). According to the documentation submitted by Defendant (which is
undisputed by Plaintiff), Plaintiff filed a BP-9 Request for Administrative Remedy
regarding Defendant’s response to the November 14, 2018 inmate fight on January 24,
2019. (Doc. # 18-2, Declaration of Carlos J. Martinez at 2-3, Attachment D). The Warden
denied this request on January 28, 2019. On February 13, 2019, the Regional Office
received a BP-10 Regional Administrative Remedy Appeal, which was denied on March
13, 2019. (Id.). On April 15, 2019, the Central Office received a BP-11 Central Office
Administrative Remedy Appeal.
The National Inmate Appeals Administrator
responded to this appeal on May 29, 2019, (id.), although Plaintiff submits a copy of this
response that is stamped “Delivered to Inmate” on June 21, 2019, (Doc. # 26-1 at 4).
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Construing these facts most generously in Plaintiff’s favor, the statute of limitations
on his constitutional claims commenced running on November 14, 2018, and ran until he
submitted his BP-8 Form on January 15, 2019, or 62 days. If the statute of limitations
was tolled while Plaintiff pursued his administrative remedies from January 15, 2019,
through June 21, 2019, 303 days remained on the statutory limitations period once the
administrative grievance process was complete. Thus, in order to be timely filed, Plaintiff
was required to file his lawsuit 303 days from June 21, 2019, or (at the very latest)
approximately on or before April 19, 2020. However, he did not file his original complaint
in this case until June 18, 2020, (Doc. # 1 at 10), approximately two months after the
limitations period expired.
In his response to Defendant’s motion, Plaintiff also argues that the Court should
equitably toll the statute of limitations for the time period that he was in the Special
Housing Unit (“SHU”) after the November 14, 2018 incident. (Doc. # 26 at 2). Equitable
tolling permits a federal court “to toll a statute of limitations when a litigant’s failure to meet
a legally-mandated deadline unavoidably arose from circumstances beyond that litigant’s
control.” Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010). However, application
of equitable tolling in suits against the government should permitted only “sparingly, and
not when there has only been a garden variety claim of excusable neglect.” Chomic v.
United States, 377 F.3d 607, 615 (6th Cir. 2004). Indeed, “[a]bsent compelling equitable
considerations, a court should not extend limitations by even a single day.” GrahamHumphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000)
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The Sixth Circuit has identified five factors for a court to consider when determining
whether to equitably toll the statute of limitations:
1) lack of notice of the filing requirement; 2) lack of constructive knowledge
of the filing requirement; 3) diligence in pursuing one’s rights; 4) absence of
prejudice to the defendant; and 5) the plaintiff's reasonableness in
remaining ignorant of the particular legal requirement.
Truitt v. Cnty. of Wayne, 148 F. 3d 644, 648 (6th Cir. 1998). “The propriety of equitable
tolling must necessarily be determined on a case-by-case basis.” Id.
Plaintiff does not claim that he did not have actual or constructive notice of the
filing requirements, and thus the first, second, and fifth factors are irrelevant. Rather,
Plaintiff essentially argues that equitable tolling should apply because, although he was
diligent in pursuing his rights, he was unable to obtain a BP-8 Form to begin the
administrative remedy grievance process until January 14, 2019. Specifically, in his
response, Plaintiff claims that, because he was in the SHU after the November 2018
incident, he was unable to go to the counselor’s office to retrieve a BP-8 Form and instead
had to wait until the counselor did rounds in the SHU to request a BP-8 Form. (Doc. # 26
at 2-3). According to Plaintiff’s response, prior to January 14, 2019, the counselor (Ms.
Chitwood) was on leave and no counselor for Building 6 was available to perform rounds
in the SHU until January 14. (Id).
However, Plaintiff’s placement in the SHU and his allegation that he was unable to
obtain a BP-8 Form until January 14, 2019 do not justify equitably tolling the statute of
limitations from November 2018 through January 14, 2019. As an initial matter, to the
extent that Plaintiff claims that his placement in the SHU limited his ability to pursue his
claims, a prisoner’s “allegedly limited access to the law library and other legal materials,
even if more restrictive than general population inmates, does not entitle him
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to equitable tolling.” Norris v. Eargle, No. 1: 14 CV 906, 2015 WL 5084779, at *6 (N.D.
Ohio Aug. 27, 2015) (collecting cases). Indeed, “[i]t is well settled that the lack of legal
assistance, ignorance of the law or the frustrations of typical prison conditions that make
prison-based litigation difficult, such as transfers, lack of access to copies and legal
tolling.” Portman v. Wilson, No. 10-CV-169-KSF, 2010 WL 4962922, at *2 (E.D. Ky. Dec.
1, 2010) (collecting cases).
Moreover, Defendant has submitted documentation showing that, contrary to
Plaintiff’s claim that he was unable to obtain a BP-8 Form because Counselor Chitwood
was on leave from November 14, 2018 (the date Plaintiff was placed in the SHU) through
January 14, 2019, Chitwood did, in fact, work on November 15, November 19-21, and
November 27-28, 2018, prior to going on extended leave. (Doc. # 27-1, Martinez Decl.
at ¶ 4, Attachment B).4 In addition, Defendant submits documentation showing that, while
Counselor Chitwood was on extended leave, two different temporary Counselors were
appointed to fill in for her, specifically Mr. Foster from December 12, 2018 through
January 10, 2019, and Mr. Shoopman from January 14-24, 2019. (Doc. # 27-1, Martinez
Decl. at ¶ 6, Attachment D, Memorandum). Thus, during this time, Plaintiff could have
requested a BP-8 Form from either of these counselors and/or from any other person in
his Unit Team. Defendant further submits the BOP SHU logs for the relevant time period
Defendant also submits a BP-8 Log, which it claims shows that Chitwood gave Plaintiff a BP-8
Form on November 20, 2018. However, while the Declaration submitted by Defendant states that
“BOP records show that Counselor Chitwood gave the Plaintiff a BP-8 form on November 20,
2018,” (Doc. # 27-1, Martinez Decl. at ¶ 5), all of the names on the BP-8 Log submitted by
Defendant are redacted. (Doc. # 27-1 at 12, Martinez Decl. at Attachment C, BP-8 Log). Thus,
while the BP-8 Log may support the conclusion that Chitwood gave someone a BP-8 Form on
November 20, 2018, the copy submitted by Defendant does not indicate whether that someone
was, in fact, Plaintiff.
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demonstrating that Unit Team staff regularly conducted SHU rounds throughout this time
period, during which Plaintiff could have requested a BP-8 Form. (Doc. # 27-1, Martinez
Decl. at ¶ 6, Attachment E, SHU Sign-in Logs from 11/11/2018 through 02/02/2019).
In response to Defendant’s submission of evidence demonstrating that Plaintiff
could have requested a BP-8 Form prior to January 14, 2019, Plaintiff has filed an
“Opposition to Defendant’s Response,” which the Court will construe as a sur-reply filed
without leave of Court. (Doc. # 28).5 In his construed sur-reply, Plaintiff does not offer
any affirmative evidence to support his claim that he had no opportunity to request a BP8 Form until January 14, 2019.
Rather, Plaintiff argues that Unit Manager Clark’s
Memorandum stating that Plaintiff could have requested a BP-8 Form from either himself
or either of the two temporary counselors assigned to Chitwood’s caseload in her absence
is a “false assertion” because the Unit Manager would not have provided an inmate with
an administrative remedy form but would instead instruct the inmate to request the form
from a counselor. (Doc. # 28 at 2). Plaintiff further claims that one of the temporary
counselors (Mr. Foster) had a “conflict of interest” in serving as Plaintiff’s counselor
because his wife was assaulted during the fight on November 14, 2018. With respect to
Defendant’s claim that Counselor Chitwood gave Plaintiff a BP-8 Form on November 20,
2018, Plaintiff denies that this is true and points out that this is not evident from the copy
of the BP-8 log submitted by Defendant, in light of the extensive redactions on the exhibit
The Court’s Local Rules do not contemplate or permit the filing of a sur-reply, LR 7.1(c), (g), and
hence such filings are not permitted absent leave of the Court. Such leave is only granted to
address arguments or evidence raised for the first time in a reply. Key v. Shelby Cnty., 551 F.
App’x 262, 265 (6th Cir. 2014) (citing Seay v. Tennessee Valley Auth., 339 F.3d 454, 481 (6th
Cir. 2003)). While Plaintiff’s sur-reply is procedurally improper, the Court will construe Plaintiff’s
“Opposition to Defendant’s Response” (Doc. # 28) as a motion seeking leave to file a sur-reply,
which will be granted.
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submitted with Defendant’s reply. Finally, Plaintiff claims that “[i]n the SHU, an inmate
can request an Administrative Remedy form until he is blue in the face, that does not
mean that staff will necessarily provide the inmate with said forms.” (Doc. # 28 at 4-5).
However, the party opposing a summary judgment motion may not “rest upon mere
allegation or denials of his pleading,” but must present affirmative evidence supporting
his claims. See Anderson, 477 U.S. at 256-57. “[C]onclusory allegations, speculation,
and unsubstantiated assertions are not evidence, and are not sufficient to defeat a wellsupported motion for summary judgment.” Jones v. City of Franklin, 677 F. App'x 279,
282 (6th Cir. 2017) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)). See
also Banks v. Rockwell Int'l N. Am. Aircraft Operations, 855 F.2d 324, 325 n. 1 (6th Cir.
1988) (“[A] motion for summary judgment may not be defeated by factual assertions in
the brief of the party opposing it, since documents of this nature are self-serving and are
not probative evidence of the existence or nonexistence of any factual issues.”); Perry v.
Agric. Dep't, No. 6: 14-168-DCR, 2016 WL 817127, at *10 (E.D. Ky. Feb. 29, 2016)
(“[C]onclusory allegations are not evidence and are not adequate to oppose a motion for
For these reasons, Plaintiff’s conclusory allegations and unsubstantiated
assertions claiming that he was unable to obtain a BP-8 Form until January 2019 are
insufficient to defeat Defendant’s well-supported motion for summary judgment on the
timeliness of Plaintiff’s claims. See Belser v. James, No. 16-2578, 2017 WL 5479595, at
*2 (6th Cir. June 6, 2017) (generalized statements are insufficient to create a genuine
dispute of material fact as to whether the administrative process is available). Moreover,
even if the Court found that Plaintiff was diligent in pursuing his administrative remedies
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based on his alleged requests for a BP-8 Form, it does not follow that he was diligent in
pursuing his claims in this lawsuit. Indeed, even accepting Plaintiff’s theory that the
statute of limitations was tolled until he received the response to his BP-11 Central Office
Administrative Appeal on June 21, 2019, (Doc. # 26-1 at 4), Plaintiff still waited nearly a
year to sign his complaint on June 18, 2020. In these circumstances, the Court finds that
Plaintiff’s conduct is inconsistent with the diligent pursuit of his rights.
With respect to the fourth factor – absence of prejudice to Defendant – even if the
Court found this factor to be neutral, “[t]he absence of prejudice . . . cannot serve as an
independent basis for equitably tolling a limitations period, especially where, as here, the
plaintiffs fail to demonstrate that any other factor supports tolling.” Zappone v. United
States, 870 F.3d 551, 558 (6th Cir. 2017). See also Jurado v. Burt, 337 F.3d 638, 644
(6th Cir. 2003) (“Absence of prejudice is a factor to be considered only after a factor that
might justify tolling is identified.”).
Thus, after evaluating the applicable factors, the Court concludes that the
application of equitable tolling is unwarranted in this case. Because Plaintiff filed his
lawsuit well after the statute of limitations with respect to his Eighth Amendment claims
expired, his Eighth Amendment claims are barred by the applicable statute of limitations
and must be dismissed. Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001).
Accordingly, Defendant’s motion will be granted and Plaintiff’s complaint will be
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For the reasons set forth herein, IT IS ORDERED as follows:
Plaintiff’s “Opposition to Defendant’s Response” (Doc. # 28) is construed as
a motion for leave to file a sur-reply and is GRANTED;
Defendant’s Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment (Doc. # 18) is GRANTED;
Plaintiff’s Amended Complaint (Doc. # 9) is DISMISSED WITH
Any pending request for relief is DENIED AS MOOT; and
This matter is STRICKEN from the Court’s active docket.
A Judgment in favor of Defendant will be entered contemporaneously herewith.
This 7th day of September, 2021.
J:\DATA\ORDERS\PSO Orders\6-20-135 MOO Granting SJ.docx
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