Bryan et al v. Security Equipment Corp. et al

Filing 14

MEMORANDUM OPINION by Judge Charles R. Simpson, III on 2/3/12. For reasons set forth the Ct concludes that this action is frivolous and must be dismissed. A separate order will be entered this date in accordance with this opinion.cc:counsel (SJS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

T. TERELL BRYAN, et al.

PLAINTIFFS

v.

CIVIL ACTION NO. 3:11CV-238-S

SECURITY EQUIPMENT CORP., et al.

DEFENDANTS

MEMORANDUM OPINION

This matter is before the court on motion of defendants South Carolina Department of
Corrections and various state employees1 to dismiss the action for lack of personal jurisdiction, for
failure to state a claim upon which relief may be granted, and for filing duplicative in forma
pauperis lawsuits.
The plaintiffs are inmates at the Perry County Correctional Institution in South Carolina.
They filed suit against various individuals alleged to be employees of the South Carolina
Department of Corrections. They also named the FBI, the United States Attorney, the South
Carolina Department of Corrections, and a number of corporate entities who they contend are
manufacturers of mace allegedly used on inmates in the prison. The plaintiffs are proceeding pro
se and their complaint is less than a model of clarity. However, Bryan indicates in his brief in
response to the defendants’ motion to dismiss (DN 12) that the date of the most recent incident of

1

Miriam Cocciolone, Amy Enlow, Benjamin F. Lewis, Jr., Dr. J. Glenn Allewine, John Ferraro, Florence Mauney, Stephen
R. Claytor, Jonathan E. Ozmint, James Simmons III, and Ann Hallman are alleged to be employees of the South Carolina Department
of Corrections.

which the plaintiffs complain was April 18, 2009.2 This action was filed in the Jefferson Circuit
Court on May 3, 2011. The lead plaintiff, T.Terrell Bryan, has filed numerous lawsuits arising out
of the use of mace, seeking to proceed in forma pauperis:3
Bryan v. Russell Campbell, et al., 3:10-cv-541-J-99MMH-TEM (filed in the
Middle District of Florida and transferred to the District of South Carolina)
Bryan v. Defense Technology U.S., et al., 2:10-cv-00152-ABJ (filed in the District
of Wyoming and transferred to the District of South Carolina)
Bryan v. Defense Technology, et al., 3:10-cv-01771W-BGS (filed in San Diego
County Superior Court and removed to the Southern District of California)
Bryan v. Defense Technology U.S., et al., 2:10-cv-02241-MCE-GGH (filed in the
Sacramento County Superior Court and removed to the Eastern District of
California)
Bryan v. Defense Technology U.S., et al., 2:10-cv-01601-RCB-JRI (filed in the
District of Arizona)
Bryan v. Defense Technology U.S., et al., 2:10-cv-5980-AG (JEM) (filed in the
Central District of California)
Bryan v. Russell Campbell, et. al., 3:10-cv-00882-ST (District of Oregon)
Bryan filed a motion in this case in the state court requesting to proceed in forma pauperis
and submitted a financial statement in which he claimed indigence and sought appointment of
counsel. Judge Gibson denied his request for counsel, noting that there is no constitutional right to
appointment of counsel in a civil action. She did not directly address the question of indigence or
waiver of fees. Despite their contention that service was insufficient, the South Carolina Department
of Corrections and the individual state employees (“state defendants”) appeared and answered the
complaint. Thereafter the state defendants removed the action to this court, and paid the filing fee.
2

A remark in a brief does not amend the complaint, but we will utilize this date for purposes of this opinion.

3

As reported by the defendants (DN 9 at p. 6).

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There is no indication that the Attorney General, the FBI, Security Equipment Corp., or Defense
Technology Corp. of America were ever served in the case and these defendants have not appeared.
The defendants have moved for dismissal on the ground of frivolity under 28 U.S.C. §
1915(e)(2)(B), as Bryan has filed numerous suits concerning the use of mace at the prison, claimed
harmful effects from the substance, and alleged inadequate medical care for inmates who are
exposed to it.
As noted in Hicks v. Brysch, 989 F.Supp. 797, 814-15 (W.D.Tex. 1997),
[W]hen Congress enacted the Prison Litigation Reform Act of 1996 [“PLRA”], it
specifically amended Title 28 U.S.C. Section 1915(e)(2)(B)(I) to provide that a
complaint filed by a prisoner could be dismissed as frivolous regardless of whether
any filing fee or portion thereof had been paid...Title 28 U.S.C. Section 1915(e)
accords judges not only the authority to dismiss a claim based on an undisputably
meritless legal theory, but also the unusual power to pierce the veil of the
complainant’s factual allegations and dismiss those claims whose factual contentions
are clearly baseless...Typical examples of claims which can be dismissed pursuant
to Section 1915(e) include...claims which are barred by limitations...In an action
proceeding under Section 1915(e), federal court may consider sua sponte affirmative
defenses that are apparent from the record even where they have not been addressed
or raised in the pleadings on file. [footnote omitted]. Significantly, the court is
authorized to test the proceeding for frivolousness or maliciousness even before
service of process or before the filing of an answer. [footnote omitted].

The United States District Court in Oregon dismissed a similar case as frivolous in
November of 2010, taking judicial notice of Bryan’s duplicative filings. Bryan v. Russell Campbell,
et. al., 3:10-cv-00882-ST (D.Or. 2010).
This action is barred by the applicable statute of limitations. Additionally. the court does not
have jurisdiction over the South Carolina Department of Corrections or its employees.
The Kentucky one-year statute of limitations governing personal injury actions applies to bar
this action. KRS 413.140(1)(a); Hill v. Overton County, Tenn., No. 98-6762, 205 F.3d 1340, 2000

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WL 145190 (6th Cir. Jan. 31, 2000), citing Wilson v. Garcia, 471 US 261, 268-79 (1985). Bryan
contends that the statute of limitations should be tolled until April 18, 2012. He urges that the
statute of limitations is tolled while an inmate is exhausting administrative remedies. There is no
evidence in the record that any grievance was filed concerning the alleged incident which would toll
the running of the statutory period.
Additionally, the alleged injuries occurred in South Carolina. No conduct by any employee
defendant or government agency is alleged to have a connection to Kentucky. There is no proof of
service on any of the remaining defendants. No comprehensible claim is made against the Attorney
General or the FBI. The two corporate defendants are claimed to have manufactured mace, but no
cognizable claim is alleged against them. Beyond having purportedly supplied the mace, there is
no connection between the corporate defendants and the alleged wrongful conduct at the prison.
For these reasons, we find that the claims are time barred, that they fail to state a claim upon
which relief may be granted, that the court lacks jurisdiction over certain of the defendants and that
there has been no service upon the others. Additionally, this is a duplicative action. On all of these
bases, the court concludes that this action is frivolous under 28 U.S.C. § 1915(e) and must be
dismissed. A separate order will be entered this date in accordance with this opinion.

IT IS SO ORDERED.

February 3, 2012

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