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Jackson v. Johnson

United States District Court, W.D. Kentucky, Paducah Division

March 21, 2017

LEVAR JACKSON PLAINTIFF
v.
JEFF JOHNSON et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Greg N. Stivers, Judge United States District Court.

         Defendants, by counsel, filed a motion to dismiss (DN 72). Plaintiff Levar Jackson, who is proceeding without counsel, filed a response (DN 49); Defendants filed a reply (DN 51); and Plaintiff filed a sur-reply (DN 58). For the reasons that follow, Defendants' motion will be granted.

         I.

         Plaintiff was a convicted inmate when he filed his complaint. He has since filed a notice of change of address indicating his release from custody. Plaintiff brought suit pursuant to 42 U.S.C. § 1983 against the following Fulton County Detention Center (FCDC) officers: Chief Deputy Jeff Johnson, Lieutenant Nick Parnell, Lieutenant Danieal Thompson, Officer Ronnie, Officer Kendra, Officer Jamie Alexander, and Officer Tina Elliott. He sued Defendants in their individual and official capacities and sought compensatory and punitive damages.

         In the complaint (DN 1), Plaintiff alleged that a “hit” was placed on him when he initially was incarcerated in the Fayette County Jail and claimed that when he was later transferred to the FCDC in September 2012, Defendants knew about the “hit, ” tried to have him murdered, and ultimately failed to protect him from an assault on December 9, 2012, by two white inmates. He further complained about harassment; spit and semen being put in his food by inmates and guards; receiving different treatment than white inmates; and a conspiracy among Defendants to harm/murder him.

         Plaintiff further alleged that on February 12, 2013, he was transferred from FCDC to the Owensboro Substance Abuse Program (SAP). He alleged a conspiracy between FCDC Defendants and SAP staff members to murder him due to the “hit” on him and claimed that while at the Owensboro SAP, he feared for his life. Also in the complaint, Plaintiff indicated that he was later transferred to the Daviess County Jail and then back to the Fayette County Detention Center, where he was incarcerated when he filed the complaint and that he feared for his life at those institutions, as well.

         II.

         In the motion to dismiss (DN 72), Defendants make two arguments. First, they argue that Plaintiff's action against Defendants is untimely as he failed to file the complaint within one year of his transfer from the FCDC on February 12, 2013. Second, they argue that all allegations made by him following his transfer from the FCDC fail as they related to actions of persons other than Defendants and that, in any event, he has not established a physical injury as required by the Prison Litigation Reform Act (PLRA) under 42 U.S.C. § 1997e(e).

         In response (DN 49), Plaintiff contends that he knows that his complaint “was mailed off by inmate services worker Ms. Wynn of fayette county before febuary 12th 2014, ” and he states that “ive been informed from legal aide worker who also a inmate at Kentucky State reformatory that long as Western district of paducah federal courts had May Complaint before febuary 12 2014 it's not my fault it was filed febuary 26th.” Plaintiff further asserts as follows:

i did my research while preparing My Law suit and found out every state has a diffrent statue of limitations example It's 3 years in the State of New York after your released from custody of department of Corrections. I wasnt going by the febuary 12th date i was released from fulton county i was going by the date i left Kentucky department of Correction Custody which was June 21st 2013. . . .when i was released from fulton county [and] was sent to Dismas charities Owensboro substance abuse program . . . when i was released i signed papers saying if i didn't complete program i would be immediately sent back to fulton County also papers I signed also told me if i didnt complete program i wouldnt Be allowed to parole to the streets . . . So technicaly i was still property of fulton county you can be terminated and sent back where you came from for The smallest things i also was still in D.O.C. Custody the day i left should Say 2.17.2013 my booking date into davies county jail was 2.17.2013[.]

(first ellipsis by Plaintiff). Plaintiff continues that he was in Daviess County custody from February 17, 2013, until May 2013, when he was sent to the “Louisville S.A.P. program, ” which he left on June 20, 2013. Consequently, argues Plaintiff, “with every date i named in this motion I beat out statue of limitations which should have started 6.20.2013 when I left the Custody of department of corrections facility in Louisville, Ky after having same problems.” He claims, “i still turned in complaint 2.9.2014 So i know western district of paducah received it before 2.12.2014 which would be a Calendar year.”

         In their reply (DN 51), Defendants state that while Plaintiff alleges that he mailed his complaint on or before February 12, 2014, he does not submit any proof to that effect. Further, Defendants state that even if the statute of limitations is met upon placing a complaint in the mail, Plaintiff certified in his complaint that “a copy of this Complaint was delivered to the prisoner mail system for mailing on 2-16-2014” and signed his name under this certification. Defendants, therefore, continue to argue that Plaintiff's complaint was filed on February 21, 2014, over one year after his transfer from FCDC and over one year after any contact with any Defendant, and that his allegations about events occurring after his transfer from FCDC fail to meet the physical injury requirement under the PLRA.

         Finally, in Plaintiff's sur-reply (DN 58), he cites to Thomas v. Carter, 284 F.3d 411, 418 (2d Cir. 2002), which he states holds that “under PLRA, claims for constitutional violations Absent physical injury need not be dismised outright, but recovery is Limited to nominal and punitive damages (as well as injunctive and declaratory Relief) because allow compensatory Damages without physical injuries would amount to recover for mental or emotional injury, which ...


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