Kirschke v. Schooley et al

Filing 4

Opinion and Order of Summary Dismissal. Signed by District Judge Victoria A. Roberts. (LVer)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MOSES R. KIRSCHKE, #384285,
Plaintiff,
v.

CASE NO. 2:20-CV-11118
HONORABLE VICTORIA A. ROBERTS

SCOTT SCHOOLEY, et al.,
Defendants.
______________________________/
OPINION AND ORDER OF SUMMARY DISMISSAL
I.
This a pro se prisoner civil rights case brought pursuant to 42 U.S.C. § 1983. In his Prisoner
Civil Rights Complaint, Michigan prisoner Moses R. Kirschke (“Plaintiff”), currently confined at
the Lakeland Correctional Facility in Coldwater, Michigan, alleges that his constitutional rights were
violated while was confined at the Thumb Correctional Facility in Lapeer, Michigan from June,
2016 through December, 2016. In particular, Plaintiff alleges that employees at the Thumb
Correctional Facility denied him envelopes for sending legal mail, denied him the use of a
typewriter, unfairly restricted his law library access, failed to investigate and act upon his grievances
and complaints, threatened him, and improperly transferred him to another prison, the Lakeland
Correctional Facility. He names Thumb Deputy Warden Scott Schooley, Thumb Resident Unit
Managers Alan Greason and K. Kennedy, Thumb Assistant Resident Unit Supervisor Brian
Rousseau, Thumb Law Librarian Anthony Valone, and Thumb Transfer Coordinator Natalie
Farnsworth as the defendants in this action and sues them in their personal capacities. He seeks
compensatory and punitive damages, costs, and any other appropriate relief. The Court granted

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Plaintiff leave to proceed without prepayment of the filing fee for this action. 28 U.S.C. §
1915(a)(1).
II.
Under the Prison Litigation Reform Act of 1996 (“PLRA”), the Court is required to sua
sponte dismiss an in forma pauperis complaint before service on a defendant if it determines that
the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief against a defendant who is immune from such relief. 42 U.S.C. § 1997e(c); 28
U.S.C. § 1915(e)(2)(B). The Court is similarly required to dismiss a complaint seeking redress
against government entities, officers, and employees which it finds to be frivolous or malicious, fails
to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915A. A complaint is frivolous if it lacks an arguable
basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490
U.S. 319, 325 (1989).
A pro se civil rights complaint is to be construed liberally. Haines v. Kerner, 404 U.S. 519,
520-21 (1972). Nonetheless, Federal Rule of Civil Procedure 8(a) requires that a complaint set forth
“a short and plain statement of the claim showing that the pleader is entitled to relief,” as well as “a
demand for the relief sought.” Fed. R. Civ. P. 8(a)(2), (3). The purpose of this rule is to “give the
defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). While notice pleading does not require
“detailed” factual allegations, it does require more than the bare assertion of legal principles or
conclusions. Id. Rule 8 “demands more than an unadorned, the defendant-unlawfully-harmed me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and

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conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.
(quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
To state a federal civil rights claim, a plaintiff must show that: (1) the defendant is a person
who acted under the color of state or federal law, and (2) the defendant’s conduct deprived the
plaintiff of a federal right, privilege, or immunity. Flagg Bros. v. Brooks, 436 U.S. 149, 155-57
(1978); Harris v. Circleville, 583 F.3d 356, 364 (6th Cir. 2009).
If the allegations in a complaint show that relief is barred by the applicable statute of
limitations, the complaint is subject to dismissal for failure to state a claim upon which relief may
be granted. Jones v. Bock, 549 U.S. 199, 215 (2007); Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547
(6th Cir. 2012); see also Mattox v. Edelman, 851 F.3d 583, 590 (6th Cir. 2017) (citing Jones and
holding that if, on the face of a complaint, the allegations show that relief is barred by an affirmative
defense (lack of exhaustion), the complaint is subject to dismissal for failure to state a claim).
III.
State statutes of limitations and tolling principles apply to determine the timeliness of claims
raised in lawsuits brought pursuant to 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 268-69
(1985). Section 1983 civil rights actions are governed by the state statute of limitations for personal
injury actions. Wallace v. Kato, 549 U.S. 384, 387 (2007). For such actions in Michigan, the statute
of limitations is three years. Mich. Comp. Laws § 600.5805(2); Carroll v. Wilkerson, 782 F.2d 44,
44 (6th Cir. 1986) (per curiam). Accrual of the claims for relief is a question of federal law. Collyer
v. Darling, 98 F.3d 211, 220 (6th Cir. 1996); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984).
The statute of limitations begins to run when the aggrieved party knows or has reason to know of

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the injury that is the basis for the action. Collyer, 98 F.3d at 220.
Plaintiff’s Prisoner Civil Rights Complaint is untimely. In his pleadings, he raises claims
concerning events that occurred from June, 2016 through December, 2016 while he was confined
at the Thumb Correctional Facility in Lapeer, Michigan. Plaintiff knew or had reason to know of
the events and injuries giving rise to his complaint at the time of those events. Consequently, his
civil rights claims accrued in 2016 with the last event, the alleged improper prison transfer,
occurring on December 29, 2016. Plaintiff, however, did not sign and date his Prisoner Civil Rights
Complaint until April 7, 2020, more than three months after Michigan’s three-year limitations period
ended. This action is therefore untimely.1 Moreover, Michigan law no longer tolls the running of
the statute of limitations while a plaintiff is incarcerated. Mich. Comp. Laws § 600.5851(9). And
it is well-established that ignorance of the law does not warrant equitable tolling of a statute of
limitations. Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); Jones v. General Motors Corp., 939
F.2d 380, 385 (6th Cir. 1991); see also Mason v. Department of Justice, No. 01-5701, 2002 WL
1334756, *2 (6th Cir. June 17, 2002).2 Plaintiff’s Prisoner Civil Rights Complaint is untimely and

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Plaintiff alleges that he learned that family members would not visit him at the Lakeland
Correctional Facility shortly after his December 29, 2016 transfer and that, on or about January
7, 2017, he discovered that Lakeland had elevated levels of lead in their drinking water. Even
using January 7, 2017 as the latest “event” or “injury” for purposes of the start of the limitations
period, this action is still untimely by three months. Additionally, the Court notes that Plaintiff
does not raise legal claims involving the Lakeland drinking water in this action. Rightly so
given that the named defendants are employed at the Thumb Correctional Facility and are not
responsible for the conditions of confinement at Lakeland.
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In fact, Michigan law does not permit equitable tolling; rather tolling must be based on a
statute. Citizens Bank v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., No. 11-CV-14502, 2012
WL 5828623, *8 n. 2 (E.D. Mich. July 6, 2012) (citing Livingston v. C. Michael Villar, P.C., No.
299687, 2012 WL 639322, *2 (Mich. Ct. App. Feb. 28, 2012) (per curiam)); accord Weathers v.
Holland Police Dept., No. 1:13-cv-1349, 2015 WL 357058, *5 (W.D. Mich. Jan. 27, 2015).
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must be dismissed for failure to state a claim upon which relief may be granted under 42 U.S.C. §
1983.
IV.
Accordingly, for the reasons stated, the Court DISMISSES WITH PREJUDICE Plaintiff’s
Prisoner Civil Rights Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A. The Court
further concludes that an appeal from this decision cannot be taken in good faith. 28 U.S.C.
§ 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 445 (1962). This case is closed. No further
pleadings should be filed in this matter.
IT IS SO ORDERED.

s/ Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated: June 4, 2020

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