United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, Judge United States Judge.
Daniel Barnes asserts several claims pursuant to 42 U.S.C.
§ 1983 and Kentucky law, arising out of events that
occurred during a traffic stop. (Docket No. 1, PageID #3, 6)
A one-year statute of limitations applies to all but one of
these claims. This matter is before the Court on Plaintiffs
second motion to amend the filing date of his complaint.
(D.N. 14) Barnes seeks to avoid the conclusion that he filed
the complaint one day past the expiration of the statute of
limitations. He alleges that technical difficulties thwarted
his attempt to timely file the complaint. However, the
Court's Local Rules, General Orders, and website discuss
the options a litigant has when faced with filing
difficulties. Barnes failed to follow this guidance.
Defendants have filed a motion to dismiss, asserting that
Barnes's claims are time-barred or otherwise fail to
state a claim for relief. (D.N. 18) The Court concludes that
the filing was untimely, even when generously construing
Barnes's motion as one for equitable tolling. For the
reasons set forth below, Plaintiffs motion will be denied and
Defendants' motion to dismiss will be granted.
April 6, 2015, Plaintiff Daniel Barnes was pulled over in
LaGrange, Kentucky, by Defendant Officers David Stratton and
Kyle Taylor. (Id., PageID # 3) Barnes warned the
officers that there was a firearm in the center console of
his vehicle. (Id.) He claims that one of the
officers grabbed his wrists through the open driver-side
window while the other officer retrieved the firearm from the
passenger side of the vehicle. (Id.) The officers
ordered Barnes to step out of the vehicle, after which Barnes
alleges that he was placed in handcuffs, pushed against the
vehicle, kicked in the legs, and searched. (Id.) The
officers then released Barnes and returned his firearm.
(Id.) Even though Barnes claims he told the officers
he had insurance, Barnes was cited for failure to maintain
insurance in violation of Ky. Rev. Stat. Ann. §
304.99-060. (Id.) Barnes later appeared in Oldham
County District Court, where the charges were dismissed.
(Id., PageID # 4)
alleges that he was "deprived of substantial rights
without due process of law, and suffered and continues to
suffer severe physical injuries and severe emotional
distress" because Defendants "had neither
reasonable articulable suspicion, nor probable cause to
believe that a crime had been committed when they stopped
[him]." (Id.) He asserts claims pursuant to 42
U.S.C. § 1983 for unlawful detention and confinement and
refusal or neglect to prevent harm, as well as state-law
claims of intentional infliction of emotional distress
(IIED), malicious prosecution, negligence, gross negligence,
and battery. (Id., PageID # 6)
Court will address Barnes's motion to amend the filing
date before addressing Defendants' motion to dismiss.
PLAINTIFF'S SECOND MOTION TO AMEND THE FILING
filed his complaint on April 7, 2016. (D.N. 1) That same day,
Barnes filed a motion to amend the filing date of the
complaint. (D.N. 10) The motion asked the Court to change the
filing date of the complaint from April 7, 2016, to April 6,
2016. (D.N. 10, PageID # 58) This is because a one-year
statute of limitations applies to all but one of Barnes's
claims. Barnes vaguely described a "technical
failure" that prevented him from timely filing on April
6. (Id.) However, the motion confusingly referred to
the wrong plaintiff, as well as certain "motions,
proposed orders, and exhibits" instead of the complaint.
(Id., PageID #58) The Court denied this motion
without prejudice on May 11, 2016. (D.N. 13)
12, 2016, Barnes filed a second motion to amend the filing
date using different counsel. (D.N. 14) In the motion, Barnes
states that his former counsel's "law clerk"
attempted to electronically file the complaint in the CM/ECF
system. (Id., PageID # 67) However, this and
subsequent attempts to file the complaint failed.
(Id.) The error message allegedly received indicated
that the documents "could not be uploaded at this
time." (Id.) In response to these purported
technical difficulties, "prior counsel and his clerk
determined to contact this Court's Clerk's office the
next day to inquire about properly filing the Complaint and
about the technical issues that they had encountered."
(Id.) The second motion goes on to explain the first
motion's deficiencies, stating that "in the law
clerk's haste, and perhaps even fear of having filed the
Complaint late, the motion he filed was improper and
incomprehensible." (Id., PageID # 68) The
motion does not indicate what time of day counsel attempted
to file the complaint. Nor does it indicate why counsel
waited until the following day to contact the Clerk's
Office. No documentary evidence showing the particular error
message received is attached to the motion.
argues that the Court should permit the Clerk's Office to
amend the filing date of the complaint because technical
difficulties prevented him from timely filing his complaint
on April 6, 2016. (D.N. 14, PageID # 67-68) In this district,
Local Rule 5.4 and Section 2 of General Order Number 11-02
require documents to be filed electronically. Parties may
look to the Court's General Orders and the ECF User
Manual for further guidance on electronic filing. Both of
these resources are readily available on the Court's
website. General Order Number 11- 02 contains the Amended
Electronic Case Filing Administrative Policies and Procedures
effective at the time the complaint was filed.
1 of General Order Number 11 -02 defines a "Technical
Failure" as "a failure of court owned/leased
hardware, software, and/or telecommunications facility which
results in the inability of a Filing User to submit a filing
electronically. Technical failure does not include
malfunctioning of a Filing User's equipment."
Section 14 discusses Technical Failures in greater detail. A
Technical Failure occurs if the CM/ECF site "is unable
to accept filings continuously or intermittently for more
than one (1) hour occurring after 12:00 noon Eastern Time
that day." When a Technical Failure occurs, the Filing
User may "submit the document to the clerk of court,
provided that the document is accompanied by a certification
signed by the Filing User, that the Filing User has attempted
to file the document electronically at least twice, with
those unsuccessful attempts occurring at least one (1) hour
apart after 12:00 noon Eastern Time that day."
Section 14 of General Order Number 11-02 and the ECF User
Manual found on the Court's website instruct that the
initial point of contact for a Filing User experiencing
technical difficulties is the ECF Help Desk. Both the User
Manual and the Court's website provide the telephone
number for the Help Desk and its operating
hours. The ECF Help Desk is available Monday
through Friday from 8:30 a.m. to 6:00 p.m. Barnes's
motion only states that counsel contacted the Clerk's
Office. (D.N. 14, PageID # 67) It does not specifically
indicate whether counsel contacted the ECF Help Desk, whether
any attempt to reach the ECF Help Desk was made, or with whom
facts alleged in the motion do not constitute a Technical
Failure as defined in General Order Number 11-02. Barnes does
not claim that the Court's software or equipment failed.
Nor did he comply with the procedures listed in Section 14
that must be followed in the event of a Technical Failure.
Therefore, Barnes is not entitled to relief on those grounds.
However, if the Filing User does not experience a Technical
Failure as defined in Section 14, he still "may seek
relief from the Court" if he suffers prejudice due to
"unforeseen technical difficulties, such as the
malfunctioning of a Filing User's equipment."
object, arguing that the Court should deny Barnes's
motion because he failed to provide any legal authority
supporting his motion. (D.N. 19, PageID # 184) Citing
Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir.
2002), Defendants assert that Barnes bears the burden of
proving he is entitled to the relief he seeks and has not met
the required burden. (Id.) Griffin concerned whether
a prisoner's writ of habeas corpus was entitled to
equitable tolling. Griffin, 308 F.3d at 649. The
court discussed two burdens in that case. First, it stated
that "the party asserting statute of limitations as an
affirmative defense has the burden of demonstrating that the
statute has run." Id. at 653. Second, it stated
that "the petitioner bears the ultimate burden of
persuading the court that he or she is entitled to equitable
has not argued that he is entitled to equitable tolling, nor
did his motion explicitly request such relief. Barnes asks
the Court to "permit the Clerk of this Court to amend
the filing date." (D.N. 14, PageID # 68) However,
Section 4 of General Order Number 11-02 and Local Rule 5.6
both state that a document filed electronically is
"deemed filed on the date and time stated on the Notice
of Electronic Filing." Barnes has not provided any legal
authority in support of his requested relief. In the absence
of such authority and in light of the Local Rules, the Court
will instead consider Barnes's motion in the context of
equitable tolling, just as other courts have done in similar
circumstances when a complaint is filed after the statute of
limitations expires. See, e.g., Kellum v. Comm 'r
o/Soc. Sec, 295 F.App'x 47, 48 (6th Cir. 2008);
Baker v. Comm 'r o/Soc. Sec, No. 09-10507, 2010
WL 742616, at *1 (E.D. Mich. Feb. 26, 2010).
courts sparingly bestow equitable tolling."
Graham-Humphreys v. Memphis Brooks Museum of Art,
Inc.,209 F.3d 552, 560-61 (6th Cir. 2000). The Court
must consider the following factors when determining whether
equitable tolling should apply: "(1) the
petitioner's lack of [actual] notice of the filing
requirement; (2) the petitioner's lack of constructive
knowledge of the filing requirement; (3) diligence in
pursuing one's rights; (4) absence of prejudice to the
respondent; and (5) the petitioner's reasonableness in
remaining ignorant of the legal requirement for filing his
claim." Kellum, 295 F.App'x at 49 (quoting
Cook v. Comm 'r of Soc Sec,480 F.3d 432, 437
(6th Cir. 2007)). "Typically, equitable tolling applies
only when a litigant's failure to meet a legally-mandated
deadline unavoidably arose from circumstances beyond ...