United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
R. Wilhoit Jr. Judge
Parsons is a prisoner incarcerated at the Eastern Kentucky
Correctional Facility in West Liberty, Kentucky. On February
13, 2016, Parson's father, daughter, brother, and sister
came to visit him at the prison, having traveled all the way
from Minnesota, Chicago, Michigan, and Massachusetts to see
him. Because of the time and expense they had incurred to get
to Kentucky, Parsons had previously obtained permission from
the prison to have them stay for a five-hour
"extended" visit, much longer than that usually
permitted by prison rules. [D. E. No, 1 at 2-3; No. 1-1 at
after the two hours permitted for "special" visits,
correctional officer Prater told Parsons and his family that
their time was up, and his visitors would have to leave the
prison. Parsons protested, and told Officer Prater that he
had been approved for an "extended" visit, and
tried to show Prater paperwork confirming that fact, but to
no avail, After Parsons' family members had left the
visiting room, Prater did check and found the approval
paperwork, but it was too late: Parsons' family had left
the area. [D. E, No, 1-1 at 3]
filed inmate grievances and appeals, beginning on February
18, 2016 and concluding on April 27, 2016. At each step of
administrative review, Kentucky Department of Corrections
("KDOC") personnel readily acknowledged the error,
but could only offer him another chance for an extended visit
with his family. [D. E, No. 1 at 5; No, 1-1 at 1-9]
Unsatisfied, Parsons filed a claim with the Kentucky Board of
Claims. KDOC again acknowledged that Officer Prater's
actions were negligent, but on December 1, 2016, the Board
denied compensation, concluding that Parsons' mental
distress was not compensable and that only his family
incurred compensable "costs" under Ky. Rev. Stat.
44.070. [D. E. No. 1-1 at 12-16]
complaint, Parsons contends that the actions of defendants
Warden Katfry Litteral, Officer Prater, and EKCC violated his
rights under the Ninth Amendment, He seeks recompense for the
costs incurred by his family for their truncated visit, as
well as to be moved to a closer prison to which travel will
be more affordable. [D. E. No. 1 at 4, 8]
Court must conduct a preliminary review of Parsons'
complaint because he has been granted permission to proceed
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. Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). When
testing the sufficiency of Parsons' complaint, the Court
affords it a forgiving construction, accepting as true all
non-conclusory factual allegations and liberally construing
its legal claims in the plaintiffs favor. Davis v. Prison
Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).
events described in Parsons' complaint are regrettable,
and his frustration with the responsible officer is
understandable. But his claims are subject to dismissal on
both factual and legal grounds, and the Court must dismiss
of the three defendants he has named in his complaint, only
officer Prater may be sued. EKCC is just a building, not an
independent legal entity. Even if the Court were to construe
this claim as being asserted against KDOC, the state agency
which operates the prison, that claim would be barred by the
Eleventh Amendment. The Eleventh Amendment to the United
States Constitution specifically prohibits federal courts
from exercising subject matter jurisdiction over a suit for
money damages brought directly against the state, its
agencies, and state officials sued in their official
capacities. Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 687-88 (1993);
Cady v. Arenac Co., 574 F.3d 334, 342 (6th Cir.
2009); Kentucky v. Graham, 473 U.S. 159, 169 (1985).
In addition, state agencies are not considered
"persons" within the meaning of 42 U.S.C. §
1983. Matthews v. Jones, 35 F.3d 1046, 1049 (6th
Cir. 1994). Parsons may therefore not sue either EKCC or KDOC
for damages in this Court.
part, Warden Litteral may not be sued because she was not in
any way personally involved in the conduct about which
Parsons complains. In order to state a viable claim against a
given defendant in a civil rights action, the plaintiff
"must allege that the defendant [was] personally
involved in the alleged deprivation of federal rights."
Nwaebo v. Hawk-Sawyer, 83 F.App'x 85, 86 (6th
Cir. 2003) (citing Rizzo v. Goode, 423 U.S. 362,
373-77 (1976)). The requirement of personal involvement does
not mean that the particular defendant actually committed the
conduct complained of, but it does require a supervisory
official to have "at least implicitly authorized,
approved, or knowingly acquiesced in the unconstitutional
conduct." Hays v. Jefferson County, Kentucky,
668 F.2d 869, 874 (6th Cir. 1982). The mere fact of
supervisory capacity is not enough: respondeat superior is
not an available theory of liability. Polk County v.
Dodson, 454 U.S. 312, 325-26 (1981). Here, at most the
warden responded to Parsons' inmate grievance on the
subject, a response which acknowledged the officer's
error. That conduct is no basis for liability. Alder v.
Coir. Medical Services, 73 F.App'x. 839, 841 (6th
Cir. 2003) ("The mere denial of a prisoner's
grievance states no claim of constitutional
dimension."). Nor is she subject to liability for a
subordinate's negligent, or even intentional, failure to
abide by the prison's regulations. Ashcroft v.
Iqbal, 556 U.S. 662, 677 (2009).
leaves only a claim against Officer Prater. But regardless of
whom the claim is asserted against, it would fail as a matter
of law for three reasons.
the claim is time barred. Parsons's claims accrued on
February 13, 2016, the day his family was improperly directed
to leave the visiting room before the time for his extended
visit was up. Estate of Abdullah ex rel Carswell v.
Arena, 601 F.App'x 389, 393-94 (6th Cir. 2015)
("Once the plaintiff knows he has been hurt and who has
inflicted the injury, the claim accrues.") (internal
quotation marks omitted) (citing United States v.
Kubrick, 444 U.S. Ill. 122 (1979)). Because the remedy
afforded in a civil rights action is entirely judge-made,
there is no statutory limitations period. Instead, federal
courts apply the most analogous statute of limitations from
the state where the events occurred. Wilson v.
Garcia, 471 U.S. 261, 268-71 (1985). The events about
which Parsons now complains occurred in Kentucky; therefore,
Kentucky's one-year statute of limitations for asserting
personal injuries applies. Ky. Rev, Stat. §
413.140(1)(a); Hornback v. Lexington-Fayette Urban Co.
Gov't., 543 F.App'x 499, 501 (6th Cir. 2013);
Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir.
that would have required Parsons to file suit by February 13,
2017. But federal law requires inmates to exhaust their
administrative remedies before filing suit, 42 U.S.C. §
1997e(a); Jones v. Bock, 549 U.S. 199, 205-07
(2007), so the limitations period is extended while he does
so, as long as such remedies are pursued diligently and in
good faith. Brown v. Morgan, 209 F.3d 595, 596 (6th
Cir. 2000). Parsons filed a grievance within days after his
visit was cut short, and finished exhausting his remedies
when KDOC Commissioner Ballard denied his last appeal on
April 27, 2016. [D. E. No. 1-1 at 9] At the latest,
Parson's complaint was therefore required to be filed by
April 27, 2017. But it was not received in this Court until
June 5, 2017, and is therefore untimely.
Court has considered whether Parson's complaint can be
saved by the "prison mailbox rule, " but concludes
that it cannot. Under that rule, a pro se
prisoner's complaint is deemed filed when it is handed to
a prison official for mailing to the court. Richard v.
Ray, 290 F.3d 810, 812-13 (6th Cir. 2002) (extending the
rule of Houston v. Lack, 487 U.S. 266 (1988) to
civil matters). Ordinarily, the Court presumes that this
occurs on the date the complaint is signed. Brand v.
Motley, 526 F.3d 921, 925 (6th Cir. 2008). Parsons
signed his complaint on March 8, 2017 [D. E. No. 1 at 8],
before the running of the limitations period, but a full two
months before it was received by the Court. But there is
proof in the record that the delay in mailing after that date
was not caused by prison officials. Specifically, Parsons
signed his motion to proceed in forma pauperis nearly a month
later, on April 26, 2017. [D. E. No. 2 at 1] And it was not
mailed to the Court until May 30, 2017. [D. E. No. 1-3 at 1]
Because Parsons did not mail his complaint for filing until
after the statute of limitations had run, his claims are
time-barred and must be dismissed. Dellis v. Con; Corp.
of Am., 257 F.3d 508, 511 (6th Cir. 2001).
his complaint had been timely filed, it fails to state a
claim for violation of his constitutional rights. The Ninth
Amendment, upon which Parsons relies exclusively as the
source of his substantive claim, states only that "[t]he
enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the
people." This is merely an interpretive rule; it does
not convey substantive rights. Charles v. Brown, 495
F.Supp. 862, 863 (N.D, Ala. 1980) ("The Ninth Amendment
does not specify any rights of the people, rather it serves
as a savings clause to keep from lowering, degrading or
rejecting any rights which are not specifically mentioned in
the document itself.") Accordingly, it cannot form the
basis for a civil rights action under Section 1983.
Strandberg v. City of Helena,791 F.3d 744, 748 (9th
Cir. 1986) ("The ninth amendment has never been
recognized as independently securing any constitutional
right, for purposes of pursuing a civil rights claim ... The
Supreme Court has repeatedly voiced concern that a section
1983 claim be based on a specific constitutional
guarantee.") Even liberally construing Parsons' pro
se complaint to assert a claim that he did not actually press
- a claim under the broad ...