Williams v. Unknown Federal Agents et al
MEMORANDUM OPINION & ORDER: Plaintiff Marshal DeWayne Williams motion to amend his complaint R. 22 is DENIED. Signed by Judge Joseph M. Hood on 8/1/16.(MJY)cc: COR, Marshall DeWayne Williams
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT PIKEVILLE
MARSHALL DeEWAYNE WILLIAMS,
UNKNOWN FEDERAL AGENTS and
THE UNITED STATES OF AMERICA,
Plaintiff Marshall DeWayne Williams is an inmate confined by
the Bureau of Prisons (“BOP”) at the United States Penitentiary
(“USP”)-Lee located in Jonesville, Virginia.
counsel, Williams, has filed a motion [R. 22] to amend his civil
Memorandum Opinion and Order (“the Opinion and Order”) and Judgment
entered on December 2, 2015 [R. 14; R. 15]
As explained below,
Williams’s motion to amend his dismissed complaint will be denied.
In 2015, while confined in Texas, Williams brought suit under
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971), alleging that he had been assaulted and mistreated while
Kentucky, Oklahoma, and Pennsylvania. Williams named the United
States and “Unknown Federal Agents” as defendants “only in their
official capacity.” Two separate district-court case numbers and
orders arose in this Court from that single complaint: this
Agents, et al., 5:15-CV-211-JMH (E.D. Ky. 2015).
In the instant Bivens proceeding, Williams challenged various
conditions of his confinement at the USP-Big Sandy in Inez,
Kentucky, where he alleged that prison officials forced him to
mail biological warfare agents out into society.
He also alleged,
without specifying where he was confined, that between June 2008
and December 2014, he suffered unlawful conditions of confinement,
including, but not limited to, being placed in isolation, denied
On December 2, 2015, the Court screened the complaint pursuant
to 28 U.S.C. §§ 1915(e)(2); 1915A, and, in the Opinion and Order,
dismissed all of the claims asserted by Williams.
confinement claims because they were barred by the applicable
statute of limitations; dismissed Williams’s claim that he was
forced to mail biological warfare agents out into society as
lacking a rational or arguable basis in law or fact based on
Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); dismissed the
unidentified federal agents as being not amenable to suit in their
sovereign immunity. [R. 14]
The Court further certified that an
appeal could not be taken in good faith.
[R. 15, ¶ 4]
Williams appealed, but on May 24, 2016, the Sixth Circuit
Court determined that based on the reasons set forth in the Opinion
and Order, Williams’s appeal did not have an arguable basis in
fact or law; denied Williams pauper status on appeal; and ordered
Williams to pay the $505 appellate filing fee within thirty days
of its order, or risk dismissal for want of prosecution.
DeWayne Williams v. Unknown Federal Agents, et al., No. 16-5008
[R. 14, therein]
On July 22, 2016, the Sixth Circuit dismissed
the appeal because Williams did not pay the assessed appellate
filing fee within the prescribed time. [Id., R. 16, therein]
On July 28, 2016, less than a week after his appeal was
dismissed, Williams filed the instant motion to amend his Bivens
complaint in this proceeding.
Williams contends that because the
BOP transferred him among its various prison facilities between
July 2009 and December 2014, and between August 2015 through June
2016, the applicable statute of limitations (Ky. Rev. Stat. §
413.140(1)(a)) should have been tolled with respect to his non-
specific condition of confinement claims, thus allowing him to
proceed with those claims.
Williams, and Williams has unsuccessfully appealed the Opinion and
Order and Judgment.
Williams has not alleged facts which warrant
amendment of his original complaint under any provision of Federal
Rule of Civil Procedure 15.
See Clark v. United States, 764 F.3d
653, 661 (6th Cir. 2014) (“When a party seeks to amend a complaint
after an adverse judgment, it thus must shoulder a heavier burden
[than if the party sought to amend a complaint beforehand].
Instead of meeting only the modest requirements of Rule 15, the
established by Rules 59 or 60.”) (quoting Leisure Caviar, LLC v.
U.S. Fish & Wildlife Serv., 616 F.3d 612, 616 (6th Cir. 2010)).
The Sixth Circuit’s approach on this issue follows that of the
See Runnion ex rel. Runnion v. Girl Scouts of
Greater Chicago and Northwest Indiana, 786 F.3d 510, 521 (7th Cir.
2015) (“… when a district court has entered a final judgment of
dismissal, the plaintiff cannot amend under Rule 15(a) unless the
judgment is modified, either by the district court under Rule 59(e)
or 60(b), or on appeal.”)
In his current motion, Williams claims—for the first time-that the applicable one-year statute of limitations should have
been tolled with respect to
his condition of confinement claims
because of his frequent transfers among BOP facilities. When
determining whether equitable tolling is appropriate, the Sixth
Circuit applies a five-factor balancing test, which weighs:
(1) the petitioner's lack of [actual] notice of
filing requirement; (2) the petitioner's lack
constructive knowledge of the filing requirement;
the petitioner's diligence in pursuing his rights;
absence of prejudice to the respondent; and (5)
petitioner's reasonableness in remaining ignorant of
legal requirement for filing his claim.
Solomon v. United States, 467 F.3d 928, 933 (6th Cir. 2006)
(quoting Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir.
2001), adopting factors set forth in Andrews v. Orr, 851 F.2d 146,
151 (6th Cir. 1988)) (alteration in Solomon). “The Andrews factors
are not necessarily comprehensive or always relevant; ultimately
every court must consider an equitable tolling claim on a caseby-case basis.”
King v. Bell, 378 F.3d 550, 553 (6th Cir.2004)
argument (vis-à-vis his USP-Big Sandy condition of confinement
claims) in a motion seeking post-judgment relief under either Rule
59(e) or 60(b), but he did not do so;1 he proceeded directly with
an appeal, which was dismissed because Williams did not pay the
appellate filing fee after the Sixth Circuit determined that his
appeal lacked an arguable basis in law or fact as to any issue
Williams is therefore not entitled to assert the
equitable tolling argument “anew” in motion to amend under his
complaint under Rule 15; to allow Williams to amend his complaint
at this juncture would result in an improper “after the fact”
manipulation of the judicial process.
And most fundamentally, Williams’s belated assertion that he
was “in transit” continually between 2009 and 2014, and again
extraordinary circumstance justifying the equitably tolling of the
applicable one-year statute of limitation period.
While the BOP
In his original Bivens complaint, Williams also did not allege that his
various BOP transfers between 2009 and 2014 prevented him from filing
suit on his USP-Big Sandy condition of confinement claims. Further, as
noted in the Opinion and Order, Williams’s own discussion of his “No
Specific Location” condition of confinement claims left much to be
desired, as Williams failed to specify exactly where or when those
claims, and the alleged deprivations he suffered, occurred. See R. 14,
at pp. 11-12.
This Court was basically required to reconstruct
Williams’s confinement history, based on the sparse information
contained on page 12 of his Complaint [R. 1], to determine where Williams
was confined during the relevant time-period(s), before it could screen
his claims challenging his condition of confinement claims regarding
Now, eight months after the dismissal of his
complaint and an unsuccessful appeal, Williams wishes to provide details
about where the BOP transferred him and where he was confined.
Williams was not in a perpetual and/or continual state of “transit”
for five straight years between 2009 and 2014, rendering him unable
to file suit on his condition of confinement claims.
and other district courts, have consistently held that temporary
periods of transfer do not qualify as extraordinary circumstances
which justify the equitable tolling of the applicable statute of
See Dodd v. United States, 365 F.3d 1273,
1283 (11th Cir. 2004) (holding that the fact that the plaintiff
had been transferred to another prison and did not have access to
his papers was not an exigent circumstance sufficient to justify
equitable tolling of the limitations period); Brown v. United
States, 20 F. App’x 373 (6th Cir. 2001) (concluding that the
movant's “ninety days in transit do not explain his lack of
diligence in filing his [28 U.S.C.] § 2255 motion during the ninemonth period that remained open to him to file timely”); United
States v. Clay, No. 5:06-CR-83-JMH-JGW-1, No. 5:09-CV-07079-JMHJGW, 2010 WL 5564051, at *2 (E. D. Ky. May 13, 2010) (denying
petitioner’s § 2255 motion as time-barred and rejecting his claim
defendant seeks equitable tolling for the statute of limitations,
it is highly unlikely that defendant was ‘in transit’ the entire
year following the date on which his conviction became final.”);
Hulsman v. Rebecca Pancake, No. 3:09-CV-P87-C, 2009 WL 1458239 at
*3 (W.D. Ky. May 20, 2009)( “The petitioner's assertion that his
petition should be considered timely because KDOC transferred him
a number of times and because the only legal assistance available
to inmates is jail-house writ writers also fails to demonstrate
entitlement to equitable tolling.
the one-year period.
Those circumstances do not toll
The petitioner does not explain why being
transferred to different prisons prevented him from filing his
habeas petition earlier.”); Nguyen v. United States, Nos. 3:07-cv207-J-32HTS, 3:04-cr-093-J-32HTS, 2007 WL 2904141 (M.D. Fla. Oct.
3, 2007) (prisoner-petitioner presented no evidence showing that
he made efforts to file a petition or secure his legal papers
during a temporary transfer period).
For the foregoing reasons, Williams’s post-judgment (and
post-unsuccessful appeal) motion to amend his complaint under Rule
15 will be denied.
Accordingly, IT IS ORDERED that Plaintiff Marshal DeWayne
Williams’ motion to amend his complaint [R. 22] is DENIED.
This the 1st day of August 1, 2016.
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