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Howell v. Reams

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

April 29, 2015

DONNY C. HOWELL, Plaintiff,
MRS. REAMS, et al., Defendants.


DAVID L. BUNNING, District Judge.

Plaintiff Donny C. Howell is a former federal prisoner who was confined for a period of time in the United States Penitentiary-McCreary ("USP-McCreary") located in Pine Knot, Kentucky. Howell has since been released from custody[1], and he has provided the Court with his current mailing address. [R. 8] While he was in custody, Howell filed a pro se civil rights complaint, pursuant to 28 U.S.C. § 1331 and the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), against "Federal Bureau of Prisons (Official and Individual capacity"); Mrs. Reams, a dental hygienist at USP-McCreary; and Mrs. Baker, "A.P.R.N. of U.S.P. McCreary, " alleging violations of his constitutional rights. [R. 1-1; R. 2]

The Court must conduct a preliminary review of Howell's complaint because he is proceeding in forma pauperis and because he asserts claims against government officials. 28 U.S.C. §§ 1915(e)(2), 1915A. A district court must dismiss any claim that is 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. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The Court evaluates Howell's complaint under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts the plaintiff's factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The Court has given his complaint a broad construction, and will evaluate any cause of action which can reasonably be inferred from the allegations made.

The Court has conducted a preliminary review of Howell's complaint. For the reasons stated below, the Court concludes that Howell's claims are without merit. Therefore, his complaint will be dismissed.


The genesis of Howell's complaint stems from an incident surrounding his scheduled appointment for a dental cleaning in June of 2012. Howell appeared at the medical department for his scheduled dental cleaning on June 19, 2012 at 10:00 a.m. He states that he waited in the holding area but was not seen by the dental hygienist prior to the closing of the lunch food service. Howell states that all inmates waiting in the holding area who had not yet been seen for their scheduled appointments, including himself, were permitted to leave for lunch and then were told to return to the holding area. Howell states that upon his return from lunch, he was told that he would not receive a dental cleaning that day and that his appointment would need to be rescheduled. He then left the medical department. Howell claims that, after his dental cleaning appointment was canceled, he received an unwarranted Incident Report on June 20, 2012. This Report charged him with refusing to work or to accept a program assignment, a Code 306 violation.[2]

Howell states that unbeknownst to him at the time, his appointment for a dental cleaning was not rescheduled, as he thought it would be, and that he did not learn until much later that his name had been removed from the National Dental Routine Care Waiting List. He states that in May of 2013, in response to his Inmate Request to Staff for a dental cleaning and for an evaluation for a partial plate, his name was placed back on the National Dental Routine Care Waiting List.

Howell appears to assert an Eighth Amendment claim relative to his dental care needs. He also claims that Defendants Susan Reams, RDH, and K. Bennett-Baker, APRN, conspired against him by falsely reporting that he had refused medical treatment and had refused to sign the Medical Treatment Refusal form [R. 1-2, Page ID# 13]. As a result, Howell was charged with a disciplinary offense on June 19, 2012. Howell seeks compensatory damages up to $70, 000.


A. Howell's Bivens Claim Relating to the June 2012 Incident

To the extent that Howell is attempting to assert claims against Defendants for alleged violations of his constitutional rights relative to the incident on June 19, 2012, those claims are time-barred because they were filed on September 16, 2014, more than one year after this incident. The state statute of limitations for personal injuries governs claims under Bivens. Owens v. Okure, 488 U.S. 235, 239-40 (1998). Federal courts sitting in Kentucky "borrow" Kentucky's one-year statute of limitations for personal injury claims. See Williams v. Gregory, 2008 WL 2230063, at *3 (E.D. Ky. May 28, 2008) ( citing K.R.S. § 413.140(1)). Thus, Bivens claims in Kentucky have a one-year statute of limitations. Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996) ( citing Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990)). Since Howell's claims against Defendants are Bivens claims, the Court must apply Kentucky's one-year statute of limitations.

Under federal law, a claim accrues when the plaintiff knows, or has reason to know, of the injury which forms the basis for the action. Ali v. Morgan, 2009 WL 872896, at *2 (E.D. Ky. Mar. 27, 2009) ( citing Kelly v. Burks, 415 F.3d 558, 561 (6th Cir. 2005)). See also Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir. 1991) (stating that courts look for the event that should alert a typical lay person to protect his or her rights) (abrogated on other grounds by Wu v. Tyson Foods Inc., 189 F.Appx. 375, 379 (6th Cir. 2006)); Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984) ("A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence.").

On June 20, 2012, Howell received the Incident Report charging him with refusing to accept medical treatment that he had previously requested and with interfering with medical and dental staff's duties, a Code 306 violation. By June 20, 2012, Howell was put on notice of the alleged violations of his constitutional rights relative to the denial of dental care on June 19, 2012, as well as the alleged conspiracy among Defendants in executing the Medical Treatment Refusal Form and filing an Incident Report against him.

Therefore, Howell's Bivens claim against Defendants accrued on June 20, 2012, meaning that Howell had one year thereafter, viz., until June 20, 2013, in which to file a Bivens claim against Defendants. Howell filed the present action on September 16, 2014, and the one-year statute of limitations relative to his Bivens claim expired on June ...

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