Johnson v. Warden, et al
MEMORANDUM OPINION AND ORDER: 1. Marvin Johnson's complaint R. 1 is DISMISSED WITH PREJUDICE. 2. Court will enter an appropriate Judgment. 3. This matter is STRICKEN from the docket. Signed by Judge Karen K. Caldwell on 7/26/2012. (RCB)cc: JOHNSON
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
J.C. ZUERCHER, Warden, et al.,
Civil Action No. 11-CV-154-KKC
Marvin Johnson is currently incarcerated in the Federal Correctional Institution at Terre
Haute, Indiana. Johnson, proceeding without counsel, has filed a civil rights complaint pursuant to
the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971),
against prison officials at the United States Penitentiary-Big Sandy in Inez, Kentucky, where he was
formerly incarcerated. [R. 1] Because Johnson has been granted pauper status [R. 7] and because
Johnson is asserting claims against government officials, the Court now screens his complaint
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. These sections require a district court to dismiss
any claims that are frivolous or malicious, fail to state a claim upon which relief may be granted, or
seek monetary relief from defendants who are immune from such relief. Id.; see also McGore v.
Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). Because Johnson’s Bivens claims are timebarred, his complaint will be dismissed.
On or about May 20, 2009, Johnson was transferred to USP - Big Sandy, where he was
assigned to a cell with a Muslim inmate. He was informed by his Muslim cell-mate that since he
was not a Muslim, he could not remain in that cell because it belonged to the Muslim community
and that only Muslim inmates could occupy it. Johnson states that it was further explained to him
that at USP-Big Sandy, different groups of inmates controlled different cells on the compound and
that since he was not a member of one of these organized inmate groups, in order for him to have
a permanent cell, he would have to purchase a cell from the group that controlled that cell. Johnson
claims that it was generally understood that different groups of organized inmates exercising control
over different cells was a longstanding and well-settled practice at the prison, amounting to an
unspoken rule of which prison officials had knowledge and accepted. But this unwritten rule was
never discussed, and no one complained about it until he did.
Johnson also alleges that his Muslim cell-mate informed him that he would be leaving the
prison in a few months and that in order for Johnson to continue residing in that cell afterwards, he
would have to purchase it. Johnson claims that he accepted his cell-mate’s offer and purchased the
cell from him for $100.00. Johnson states that about two weeks before the Muslim cell-mate was
scheduled to leave the prison, he (the Muslim cell-mate) was placed in segregation for a rule
violation. Shortly thereafter, the Muslim community laid claim to the cell. Johnson states that he
informed the Muslims that he had purchased this cell from his Muslim cell-mate but that the Muslim
cell-mate subsequently denied that such a transaction had occurred. Johnson says that that is when
his problems began.
First, he says that the Muslims told him in no uncertain terms that he must vacate this cell
and that he complied. However, Johnson moved out of the cell without first obtaining the consent
of his prison Case Manager, Ms. Brown. Johnson states that he promptly notified Brown of the
move and explained to her the reason for the move. Johnson says that because he did not first obtain
Brown’s permission to vacate the cell, she ordered him to move back into the cell regardless of the
consequences. Johnson refused to return to the cell, resulting in a meeting in the lieutenant’s office,
which culminated in Johnson’s moving back into the Muslim cell.
Johnson says he explained to the Muslims that prison officials had ordered him to return to
the cell and that they agreed to be patient with him and to give him some time to make arrangements
to vacate the cell again. Johnson consulted with his prison Counselor, Mr. Parker, who agreed that
Johnson could relocate to a different cell. However, Parker also ordered Johnson’s Muslim cell-mate
to vacate that cell, advising that the cell would be closed for at least six months. Parker also issued
a memorandum to all inmates advising that no inmate could hold a cell for a cell-mate who had been
placed in segregation or was absent from the cell for an extended time for any other reason. Johnson
alleges that the Muslim community concluded that Parker issued this memorandum because Johnson
had disclosed to prison officials the control the Muslims exercised over certain prison cells, and they
labeled him a snitch. Consequently, Johnson states that unbeknownst to him, he became a marked
man within the Muslim community, resulting in his being attacked by Muslim inmates.
Johnson claims that on September 26, 2009, he was attacked by a group of Muslim inmates
wielding knives or homemade weapons. During the assault Johnson was stabbed and suffered
significant cuts and bruises to his forehead, eyes, arms, neck and back. [R. 1-1 at 20] In his papers,
Johnson appears to claim that prison officials failed to prevent the assault by the Muslim inmates and
that Senior Officer Todd, the first prison official to witness the attack, failed to act promptly to
prevent other inmates from joining in the attack. Johnson seeks compensatory damages.
The day after the attack, Johnson was charged in an Incident Report with a 201 Violation
(fighting with another person). This charge was referred to a Disciplinary Hearing Officer (“DHO”)
for hearing. Johnson was advised of his rights, and a DHO hearing was conducted on October 1,
2009. Johnson pled not guilty to the offense, stating that he was attacked and was merely defending
himself. On April 8, 2010, the DHO issued a report finding Johnson guilty of the offense and
imposed the following sanctions: (1) 30 days of Disciplinary Segregation; (2) loss of commissary
privileges for 3 months; and (3) a recommended Disciplinary Transfer to another institution.
Johnson was later transferred to the United States Penitentiary in Terre Haute, Indiana.
Johnson did not file an inmate grievance regarding the attack until June 6, 2011, when he
complained that officer Todd failed to take reasonable measures to protect him from violence at the
hands of other prisoners. Johnson filed a second grievance with the warden on June 8, 2011,
complaining that the officials and warden at USP-Big Sandy exhibited deliberate indifference to his
safety. Both grievances were denied as untimely because they were not filed within twenty days of
the incident, determinations affirmed at both the regional and national level.
Because Johnson has not stated whether he is suing the defendants in their individual or
official capacities, the Court will assume that he is suing the defendants in both capacities. However,
the remedy implied in Bivens does not permit suit against a federal official in his or her official
capacity because such a claim essentially seeks damages from the United States itself, a claim
prohibited by sovereign immunity. Blakely v. United States, 276 F.3d 853, 870 (6th Cir. 2002).
Further, any Bivens claims against the defendants in their individual capacities are time-barred. The
limitations period for constitutional torts committed in Kentucky is one year. Ky. Rev. Stat. §
413.140(1)(a); Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003). Johnson’s claim accrued
on September 26, 2009, the date he was attacked and injured. However, Johnson did not file suit
until September 23, 2011, nearly two years later, well after the statute of limitations had run. The
limitations period is ordinarily tolled while a prisoner exhausts administrative remedies, but Johnson
filed his prison grievances on June 6, 2011, and June 8, 2011, respectively, well after the limitations
period had already expired. Because the allegations in Johnson’s complaint affirmatively establish
that his claim is barred by the statute of limitations, dismissal is appropriate upon initial review.
Jones v. Bock, 549 U.S. 199, 215 (2007) (quoting Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001)
(“A complaint may be subject to dismissal under Rule 12(b)(6) when an affirmative defense ...
appears on its face.”).
Accordingly, it is ORDERED as follows:
Marvin Johnson’s complaint [R. 1] is DISMISSED WITH PREJUDICE.
The Court will enter an appropriate Judgment.
This matter is STRICKEN from the docket.
Dated this 26th day of July, 2012.
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