Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perry v. Agricultural Dept.

United States District Court, E.D. Kentucky, Southern Division, London

April 16, 2015

OCEANUS PERRY, Plaintiff,
v.
AGRICULTURAL DEPT., et al., Defendants.

MEMORANDUM OPINION AND ORDER

DANNY C. REEVES, District Judge.

Plaintiff Oceanus Perry is an inmate confined by the Bureau of Prisons ("BOP") at the United States Penitentiary ("USP")-McCreary, in Pine Knot, Kentucky. Proceeding without an attorney, Perry has filed a Complaint asserting various tort and constitutional claims under 28 U.S.C. § 1331 pursuant to the doctrine announced in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), against fifty-one defendants.[1] [Record No. 1] The Court granted Perry's motion to proceed in forma pauperis by separate order. [Record No. 11]

The Court has conducted a preliminary review of Perry's Complaint because he asserts claims against a government official and because he has been granted pauper status. 28 U.S.C. §§ 1915(e)(2)(B), 1915A. Because Perry is not represented by an attorney, the Court liberally construes his claims and accepts his factual allegations as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). For the reasons set forth below, certain claims against five defendants[2] may proceed, but the remaining defendants will be dismissed from this action.

I.

Perry is serving several consecutive terms of imprisonment imposed in separate criminal cases. On September 2, 2003, in Cleveland, Ohio, Perry was sentenced to a 128-month prison term for armed bank robbery. United States v. Oceanus Perry, No. 4: 02-CR-92-SL-1 (N. D. Ohio 2002) [Record No. 63, therein; aff'd, Record No. 77, therein]. On April 11, 2006, in Columbus, Ohio, Perry was sentenced to a 63-month prison term based on his convictions for bank robbery and for the illegal use of firearms. United States v. Oceanus Perry, No. 4:02-R-92-SL-1 (N. D. Ohio 2002) [Record No. 52, therein; aff'd, Record No. 73, therein; see also United States v. Oceanus Perry, No. 06-3514, 228 F.Appx. 557 (6th Cir. April 13, 2007).].

In October 2007, Perry and three other inmates were indicted on several criminal charges in connection with an incident at USP-McCreary on September 17, 2007. United States v. Oceanus Perry, No. 7:07-CR-23-GFVT-EBA (E.D. Ky. 2007); [Record No. 1, therein]. On March 19, 2008, the jury convicted Perry on charges of assaulting a federal law enforcement officer and aiding and abetting in violation of 18 U.S.C. §§ 2 and 111(a)(1) and (b), and of being an inmate in possession of a prohibited object under 18 U.S.C. § 1791(a)(1). [Record No. 205, therein] Consequently, on September 30, 2008, Perry was sentenced to a 225-month prison term, to be served consecutively to his prior Ohio sentences. [Record No. 263, therein] Perry's conviction and sentence were affirmed on appeal. [Record No. 291, therein; see also United States v. Oceanus Perry, No. 08-6219, 401 F.Appx. 56 (6th Cir. Nov. 4, 2010).][3]

II.

The following is a summary of the allegations set out in Perry's Complaint.[4]

A. Alleged Events at FTC-Oklahoma in 2011

On November 29, 2011, Perry arrived at the Federal Transfer Center in Oklahoma City, Oklahoma ("FTC-Oklahoma), but was separated from other intake inmates because "he was being housed in [the Special Housing Unit ("SHU")] due to a 2007 assault in Kentucky." [Record No. 1, p. 11, ¶¶ 84-85] Perry states that he was "subjected to metal detectors and X-ray body scans due to suspicion of alleged contraband, " that he was placed in an observation cell, and forced to wear body restraints. [ Id., ¶¶ 86-91] When Perry refused to sign a statement and form acknowledging his consent to a "digital and instrument rectal" search, prison officials informed Perry that his consent was not required because the BOP Regional Director had approved the rectal search. [ Id., pp. 11-12, ¶¶ 91-94] Then, Perry claims, an unidentified prison official grabbed him by the back of the neck, forced him onto the table, and a doctor and other prison officials performed a physical rectal search. [ Id., p. 12, ¶¶ 96-99] According to Perry, FTC-Oklahoma officials did not attempt less intrusive means to conduct the search. [ Id., ¶ 95]

Perry alleges that the search did not produce any contraband. [ Id., ¶ 100] Nonetheless, Lieutenant Daniels allegedly stated that the rectal examination "would be repeated until contraband was found." [ Id., ¶ 101] Perry asserts that Lieutenant Daniels and several other unknown officers then conducted a metal detector and X-ray body scan, which produced negative results. [ Id., pp. 12-13, ¶¶ 104-05] While Lieutenant Daniels was escorting the restrained Perry back to the observation cell, Lieutenant Daniels struck him in the groin. Perry further alleges that Officer "Lesser" or "Lessner" and other unidentified prison staff members threatened him, taunted him, and made sexual comments about the rectal search. [ Id., p. 13, ¶¶ 106-07] Perry also claims that when he returned to the observation cell, he was strip-searched and ordered to submit to a urine analysis. [ Id., ¶ 109] Perry claims that he was escorted to the SHU, where he requested medical treatment due to excessive rectal bleeding. [ Id., ¶ 110]

B. Alleged Events at USP-McCreary from December 1, 2011, to February 2012

Perry contends that, on December 1, 2011, he was returned to USP-McCreary, and that during intake screening, he "gave notice" of the alleged events on November 29, 2011, to Mrs. Read, the Unit 3 Case Manager; Dr. Figuroa; Special Investigative Services ("SIS") Lieutenant Baker; and Operations Lieutenant William Duck. [Record No. 1, p. 13, ¶ 112] Perry states that he informed EMT Christopher Griffis that he was experiencing "rectal pain, swelling of the testicle, and lower back pain." [ Id., pp. 13-14, ¶¶ 115-16] Griffis allegedly responded that Physician Assistant Baker, his health care provider, would handle his medical complaints as part of his institutional orientation. [ Id. ]

Perry claims that SIS Agent Ronald Corriveau interviewed him "near Monday, " (presumably, Monday, December 3, 2012), but that Corriveau declined to take his statement because FTC-Oklahoma Lieutenant Daniels had filed a report about the incident on November 29, 2011. [ Id., p. 14, ¶ 119] Perry contends that, on December 20, 2011, an individual named Henekis Stoddard mailed him a copy of his statement concerning the alleged events of November 29, 2011, but that the USP-McCreary mailroom staff gave the mail to SIS staff, so Perry never received it. [ Id., ¶ 120]

Perry alleges that on December 13, 2011, "Dr. Velaspues"[5] came to his SHU Cell, asked him his BOP Register Number, and walked away, claiming that he had conducted a "chronic care" consultation. [ Id., ¶ 121][6] Perry asserts that Physician Assistant Baker did not see him until January 2012. When he complained to Baker about his medical complications resulting from alleged events of November 29, 2011, Baker responded that she would not treat him because her computer showed no medical report. [ Id., pp. 14-15, ¶¶ 123-24]

Perry also alleges that, on January 11, 2012, while he was confined in the SHU at USP-McCreary, he discovered that several items of his personal property were missing. The USP-Allenwood staff had inventoried and mailed these personal items to him. Perry complained to "R & D" Supervisor Sheila Mattingly and filed a tort claim. The tort claim was denied, according to Perry, because Lieutenant Thornburg lied about the receipt associated with the missing property. [ Id., p. 16, ¶¶ 132-35]

Perry also claims that, in February 2012, UPS-McCreary Warden Richard B. Ives, Associate Warden Quay, Captain Christopher Maruka, and SIS Agent Ronald Corrivuea signed a "correspondence rejection notice, " which allegedly stated that he would not be allowed to receive mail because he was a "terrorist and a police assaulter." [ Id., p. 15, ¶¶ 125-27] Perry states that the BOP's inmate classification scheme does not include "terrorist" and he has not been convicted of crime involving terrorism. Perry asserts that the inaccurate notice was mailed to several individuals, including Henekis Stoddard, who stopped contacting him as a result. [ Id., ¶¶ 128-29] Perry alleges that he filed a grievance with Warden Richard B. Ives and USP-McCreary Mailroom Supervisor Sheila Mattingly. [ Id., ¶ 130] Mattingly purportedly responded that the SIS collected Perry's mail, screened it, and returned the mail several days later. The mailroom staff allegedly discards any mail that has a postmark of more than ten days earlier. [ Id., ¶ 131]

C. Alleged Events at USP-McCreary from June 2012 to August 2012

Perry asserts that Lieutenant Daniels, located at FTC-Oklahoma, issued Incident Report No. 2239424 regarding the alleged events on November 29, 2011. [Record No. 1, p. 16, ¶ 136] While somewhat unclear, it appears that Lieutenant Daniels charged Perry with possessing contraband at FTC-Oklahoma. [ Id., ¶ 140] In June 2012, Gary Mehler, a Disciplinary Hearing Officer ("DHO") at USP-McCreary, presided over the disciplinary hearing. Perry claims that he produced staff memoranda showing that Incident Report No. 2239424 was "fraudulent." [ Id., ¶¶ 137-39] However, allegedly acting on instructions from Captain Maruka, DHO Mehler refused to dismiss the Incident Report. [ Id. ] Instead, DHO Mehler postponed the hearing, stating that he needed to talk to Captain Maruka about the charge. [ Id. ] In early July 2012, Lieutenant Baker served Perry with revised Incident Report No. 2239424 which asserted that FTC-Oklahoma SIS staff, not Lieutenant Daniels, had discovered contraband in a different location. [ Id., ¶ 140]

In August 2012, Perry was found guilty of the offense charged in the revised Incident Report No. 2239424. On the same day, Captain Maruka released him from the SHU, where he had been confined for nine months. [ Id., ¶ 141] Perry appears to allege that, as a result of Incident Report No. 2239424, "he was sanctioned which extended the term of his sentence." [ Id., p. 19. ¶ 165] In other words, Perry lost good-time credits ("GTC") as a result of his disciplinary conviction based on the November 29, 2011 incident.

D. Alleged Events at USP-McCreary in May 2013

Perry further alleges that in late May 2013, SIS Agent Lieutenant Carol and Lieutenant "D." Mullins placed him in the SHU because he refused to provide information on his "associates." He remained in the SHU from Friday until Tuesday, without receiving a copy of a lock-up authorization, Incident Report, or report from a Segregation Review Officer. [Record No. 1, p. 17, ¶¶ 142-43] Perry also claims that when he was sent to the SHU, Officer Barnett and an unknown officer inventoried and packed his personal property. Perry claims that, after he was released from the SHU, he noticed that several items of property were "missing" from the inventory list and that Officer Barnett had those items in his possession. [ Id., ¶¶ 144-46] Perry notified former Warden J. C. Holland, who instructed Lieutenant Huberty to investigate, but no investigation was conducted. [ Id., ¶ 147]

E. Alleged Events at USP-McCreary between January 13, 2014, and February 5, 2014

Perry also claims that on January 13, 2014, Officer David Taylor searched Perry's cell (No. 209 in Unit 6A). An officer informed Perry that "Taylor said he found a piece of metal in the light." [Record No. 1, p. 17, ¶¶ 148-49] Perry and his cellmate were called to the office of Lieutenant "D." Mullins, who informed them that contraband metal was found in the light in the cell. Perry and his cellmate were then taken to the SHU. [ Id., ¶¶ 150-51] On January 14, 2014, Lieutenant Mark Dixon served Perry with Incident Report No. 2530713, charging him with attempting to manufacture a weapon based on the discovery of metal inside a shoe. [ Id., p. 18, ¶¶ 152, 154] The disciplinary process was suspended, however, pending a referral of the charge to the Federal Bureau of Investigations ("FBI"). [ Id., ¶ 152] Perry asserts that the Incident Report did not describe the shoe in which the metal piece was allegedly found. [ Id. ¶ 154] Perry alleged, in a Notice to the Warden, that Officer Taylor had planted evidence, falsified the Incident Report, and was responsible for the loss of his personal property. [ Id., ¶ 153]

Perry states that on January 22, 2014, Lieutenant Richard Parsons informed Perry that Warden J.C. Holland had authorized him to seize all of Perry's personal property, including paper and pens, because Perry was attempting to file a "private administrative remedy." [ Id., ¶ 155-56] Perry claims that, on that same date, he requested "copies of the institutional referral document and the FBI rejection notice." [ Id. ]

On January 27, 2014, the Unit Disciplinary Committee ("UDC") conducted a hearing on the charge set forth in Incident Report No. 2530713. Perry requested that the UDC dismiss the Incident Report due to noncompliance with UDC procedures. [ Id., ¶ 157] And when the matter was not dismissed, he asked Unit 4A Case Manager "B." Chitwood to review the camera from Unit 6A to prove that (1) Officer David Taylor had engaged in improper conduct while searching his cell on January 13, 2014, and (2) Taylor "never called staff to witness the object allegedly found and where it was allegedly found." [ Id., pp. 18-19, ¶ 158]

On February 3, 2105, Perry mailed a certified letter to Warden Holland allegedly providing evidence in support of his claims against Officer David Taylor, "and an institutional appeal." [ Id., p. 19, ¶ 159] Perry was told that his certified mailing was lost; however, on February 6, 2014 (the day after his disciplinary hearing), USP-McCreary mailroom official "Vires" claimed that the letter had "popped up" on her desk. [ Id., ¶ 162]

On February 5, 2014, DHO Gary Mehler found Perry guilty of the offense charged in on Incident Report No. 2530713. [ Id., ¶ 161] Perry challenges the finding, claiming that no photographic evidence of the shoe in question existed. He also alleges that DHO Mehler lied "when he stated that inmates did not request camera review because footage had been destroyed before the hearing" and "when he said he possessed a copy [of] F.B.I. and rejection documents." [ Id., ¶ 164] Perry again provides no specifics about the sanction(s) imposed, but states, "[s]imilar to being found guilty to incident report 2239424, when Inmate Perry was found guilty of incident report 2530713, he was sanctioned which extended the term of his incarceration." [ Id., ¶ 165] Thus, Perry apparently lost an unspecified amount of GTC as part of his penalty. Perry appealed his conviction on Incident Report No. 2530713, based on the lack of referral documents from the FBI, but claims that his "regional appeal" was denied on May 1, 2014. [ Id., pp. 19-20] Perry contends that "an unofficial USP-McCreary F.B.I. referral document" was created on May 17, 2014. [ Id. ] Perry does not indicate whether he appealed the regional office's decision to the BOP Central Office.

F. Alleged Events at USP-McCreary between April 26, 2014, and May 1, 2014

Perry also claims that, on April 26, 2014, Officer "A." Rose improperly seized items of his personal property without a "confiscation form." When Perry asked the reason for the confiscation, Rose allegedly stated, "the next time I catch you in your cell, I'm going to say that you assaulted me. You are lucky I don't kick you're a____ and shove a plunger up you're a_ _." [Record No. 1, p. 20, ¶¶ 168-69] Perry states that, on April 29, 2014, he submitted a "complaint with an affidavit" describing Rose's alleged actions, but that Unit 6 Manger Pamela Poston refused to process it. [ Id., ¶ 170] Perry further asserts that, on May 1, 2014, he attempted to use a computer to submit a complaint to SIA Agent Ronald Corriveau, and that at 1:30 p.m. on the same day, Lieutenant Leroy Chaney called him to his office and told him that if he did not drop the complaint, he would be moved to a different housing unit. [ Id., ¶¶ 170-73] Perry states that when he refused to drop the complaint, he was "locked" in a holding cell until 6:00 p.m. At that time, Lieutenant "D." Weiss told him that he was being moved to housing Unit 1B. [ Id., ¶ 174] When Perry asked why he was being moved to the unit "known to be hostile to inmates from his [Perry's] state, " Weiss allegedly replied, "I'll let the inmates handle our problem for us." [ Id., p. 21, ¶¶ 175-76] Perry claims that he filed "a complaint of reprisal" to the Warden, the Attorney General, and the BOP's Central office. [ Id., ¶ 178]

G. Alleged Events at USP-McCreary between June 27, 2014, and July 4, 2014

Perry contends that, on June 27, 2014, Officer David Taylor, along with another prison officer, instructed him to exit his cell (No. 120 in Unit 1B) so that Taylor could search it. [Record No. 1, p. 7, ¶¶ 48-51] Perry alleges that he told the other officer that he had filed a complaint alleging that Taylor had planted a piece of metal in his prior cell (No. 209, in Unit 6A). [ Id., ¶ 53] Because he had already filed a complaint against Taylor, Perry wanted to observe Taylor during the search, but the other officer refused. [ Id., pp. 7-8, ¶¶ 53-54] Perry states that compound officers "pat-searched" him outside of the housing unit. When Perry again explained why he wanted to observe the search, Lieutenant David Mullins told Perry that he would not be filing any complaints and Perry was placed in a holding cell. [ Id., p. 8, ¶¶ 55-58] While in the holding cell, Perry was ordered to strip-search in front of Lieutenant Mullins and Lieutenant Fowler. Lieutenant Fowler later stated that he saw an object on the bench behind Perry. [ Id., ¶¶ 60-61]

While Perry was naked, another officer, possibly "J." Wagner, told him to "turn around. Keep your legs straight. Bend over at the waist and spread your butcheeks (sic) until I can see in you're a____ h_____." [ Id., ¶ 62] Perry claims that he told the officer he would spread his legs, squat, and then cough pursuant to BOP policy, but that what the officer demanded was sexual harassment. [ Id., ¶ 63] Perry states he spread his legs, squatted and coughed, but was given his clothes and told that he would be taken to the SHU for refusing a direct order. [ Id., p. 9, ¶¶ 64-67] An unidentified officer allegedly stated, "now you are going to get you're a___ kicked!" [ Id. ]

At that point Lieutenant Ulitzer and another unidentified officer allegedly assaulted Perry. Perry was placed in the "black holding cage, " strip-searched, and again ordered to submit to a rectal search. Lieutenant Ulitzer said, "but this time keep your legs straight, turn around, bend over and spread you're a_____ cheeks until I can see up in you're a _ _." [ Id., ¶¶ 69-70] Perry allegedly told Lieutenant Ulitzer that his demand violated BOP policy, but Ulitzer told him that if he did not comply, he would instruct the Cell Extraction Removal Team ("CERT") to place him in restraints and "look in his rectum." [ Id., ¶¶ 71-72]

Perry states that "a CERT team was executed against him." [ Id., ¶ 73] The specifics of the CERT are not alleged in the Complaint. Perry alleges that he complained to Nurse Sumer that the restraints were cutting off his circulation and breathing. [ Id., ¶ 74] Perry claims that Lieutenant Ulitzer again verbally threatened him and that Lieutenant Huberty allegedly told him that "if you stand and spread your cheeks, I'll take you off restraints." [ Id., pp. 9-10, ¶¶ 75-76]

On June 28, 2014, Lieutenant Huberty, Physician Assistant Davis, Nurse Stevens, Lieutenant Fowler and Nurse Sumer came into Perry's cell at intervals to check his restraints. He alleges that he complained to each of them about pain and loss of circulation in his wrists, but Lieutenant Fowler and Nurse Sumer refused to provide him with medical treatment or provide a medical request form. [ Id., ¶¶ 77-81] Perry was taken to "R & D, " where he underwent an X-ray body scan. Perry was allegedly told that submitting to the body scan was "the only way" that he could receive medical treatment. [ Id., ¶ 79] However, even after the body scan and his release from the restraints, he claims that he never received medical treatment. [ Id., ¶ 79] On June 30, 2014, Perry asked Counselor Lawson and Case Manager Jameson for permission to review the surveillance footage of the events of June 27, 2014. [ Id., p. 11, ¶ 82] Perry alleges that between June 27, 2014, and July 4, 2014, Lieutenant Ultizer, Lieutenant Fowler, Lieutenant "R." Parsons, and "unknown SHU staff" denied him toilet paper, hygiene supplies, a shower, and a change of clothing. [ Id., ¶ 83]

III.

A. Events Allegedly Occurring at FTC-Oklahoma

Perry claims that Defendants "FTC-Oklahoma staff, " FTC-Oklahoma Lieutenant Daniels, FTC-Oklahoma physician Dr. Kahn, FTC-Oklahoma Officer "D." Brush, and an FTC-Oklahoma Correctional Officer identified as "Lessner" and/or "Lesser" violated his rights guaranteed by the Eighth Amendment of the United States Constitution and committed various common law torts. Perry cannot pursue such claims in this Bivens action and his claims against these defendants will be dismissed for lack of jurisdiction.

A plaintiff must plead facts establishing personal jurisdiction over the defendants he names, and the plaintiff has the burden of making at least a prima facie showing of personal jurisdiction. See Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 149 (6th Cir. 1997). "Without personal jurisdiction over an individual... a court lacks all jurisdiction to adjudicate that party's right, whether or not the court has valid subject matter jurisdiction." Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991) (citing Dragor Shipping Corp. v. Union Tank Car Co., 378 F.2d 241, 244 (9th Cir. 1967)). A defendant must have purposefully established minimum contacts within the forum state before personal jurisdiction will be found to be reasonable and fair. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316-19 (1945); see also Halderman v. Sanderson Forklifts Co., 818 S.W.2d 270, 274 (Ky. Ct. App. 1991). To establish minimum contacts, a plaintiff must establish that the defendant should reasonably anticipate being brought into court in the forum state because he purposefully availed himself of the privilege of conducting activities there. Int'l Shoe, 326 U.S. at 316-19; see also Southern Machine Co. v. Mohasco Indus., Inc., 401 F.2d 374, 380 (6th Cir. 1968). Put another way, "the relevant inquiry is whether the facts of the case demonstrate that the non-resident defendant possesses such minimum contacts with the forum state that the exercise of jurisdiction would comport with traditional notions of fair play and substantial justice.'" Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir. 1991) (citations omitted).

Perry has not established personal jurisdiction over any of the FTC-Oklahoma Defendants, all of whom reside and work in Oklahoma. Perry's claims against them arise out of conduct occurring in Oklahoma, not from any alleged activities in Kentucky. Perry does not claim that these defendants have been to Kentucky, or that that they would anticipate being named in litigation here. Accordingly, Perry's official and individual capacity claims against the "FTC-Oklahoma staff, " FTC-Oklahoma Lieutenant Daniels, FTC-Oklahoma physician Dr. Kahn, FTC-Oklahoma Officer "D." Brush, and FTC-Oklahoma Correctional Officer "Lessner" and/or "Lesser" will be dismissed for lack of personal jurisdiction. Hasan v. Waxxis Inv. N.V., 865 F.2d 258, at *1 (6th Cir. 1988) (unpublished table opinion) ("[T]he plaintiff in a civil action has the duty to state the grounds upon which the jurisdiction of the court depends."); Fed.R.Civ.P. 8(a)(1); Walls v. Waste Res. Corp., 761 F.2d 311, 317 (6th Cir. 1985).

B. Alleged Events at USP-McCreary between December 1, 2011, and February 2012

As summarized above, Perry alleges that between June 2012 and August 2012, Dr. Figueroa, Lieutenant Duck, EMT Specialist Christopher Griffis, SIS Agent Ronald Corriveau, "Dr. Velazpues" (or "Dr. Velazquez"), Physician Assistant Baker, Former Warden Richard B. Ives, Former Associate Warden Quay, Captain Christopher Maruka, and Mailroom Supervisor Sheila Mattingly, either interfered with his incoming and/or outgoing mail at USP-McCreary in violation of his rights guaranteed by the First Amendment of the United States Constitution, or denied him necessary medical treatment in violation of the Eighth Amendment, which prohibits cruel and unusual punishment. Perry also claims that these defendants committed various common law torts and seeks monetary damages.

These claims will be dismissed because they are barred by the applicable one-year statute of limitations. A district court may raise a limitations bar sua sponte when the "defect was obvious from the face of the complaint." Alston v. Tenn. Dep't of Corr., 28 F.Appx. 475, 476 (6th Cir. 2002) (citing Pino v. Ryan, 49 F.3d 51, 53-54 (2d Cir. 1995)). Perry's First and Eighth Amendment Bivens claims arose in Kentucky, and a one-year limitation period applies to claims alleging the commission of constitutional torts in Kentucky. Ky. Rev. Stat. § 413.140(1)(a); Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003) (citing McSurely v. Hutchison, 823 F.2d 1002 (6th Cir. 1987)); Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 181-82 (6th Cir. 1990). Thus, Bivens claims, such as these, are subject to a one-year statute of limitations under Kentucky law. Mitchell, 343 F.3d at 825. When that one-year period began to run is determined by federal law. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996) (citing Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984)). A cause of action accrues when "the plaintiff knows or has reason to know that the act providing the basis of his or her injury has occurred." Id. (citing Friedman v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991)); see also Fox v. DeSoto, 489 F.3d 227, 232-33 (6th Cir. 2007).

Perry alleges that his First Amendment mail interference claims and his Eighth Amendment medical treatment claims arose on various dates between December 1, 2011, and an unidentified date in February 2012.[7] The BOP's administrative remedy process typically takes no more than ninety (90) days from beginning to end but, even assuming that liberal time extensions were involved at all three levels (the institution, the BOP's Regional Office and the BOP's Central Office), and that the process instead extended to hundred eighty (180) days, the administrative remedy process regarding all of Perry's First and Eighth Amendment claims would and should have concluded before ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.