United States District Court, E.D. Kentucky, Central Division, Lexington
MOHAMMED S. EL-HANINI, Plaintiff,
FEDERAL BUREAU OF PRISONS, et al., Defendants.
MEMORANDUM OPINION AND ORDER
C. Reeves, United States District Judge
Mohammed El-Hanini is an inmate previously confined at the
Federal Medical Center (“FMC”)-Lexington, located
in Lexington, Kentucky. On June 13, 2017, El-Hanini filed a
Complaint against the Federal Bureau of Prisons,
FMC-Lexington and various prison officials under 28 U.S.C.
§ 1331 and the doctrine announced in Bivens v. Six
Unknown Narcotics Agents, 403 U.S. 388 (1971). [Record.
No. 1] El-Hanini alleges that he received inadequate medical
treatment while he was confined at FMC-Lexington and that he
was “targeted” by prison officials, causing
physical and psychological harm. [Record No. 1 at 4-5]
16, 2017, this Court granted El-Hanini's motion to
proceed in forma pauperis and permitted him to pay
his filing fee in installments. [Record. No. 5] The Court
directed El-Hanini to pay an initial partial filing fee of
$55.00 within 28 days. [Id.] However, after
El-Hanini failed to pay any fees. As a result, on December
20, 2017, the Court directed El-Hanini to show cause why this
action should not be dismissed for failure to prosecute by
providing an explanation for his past failure to pay his
initial partial filing fee. [Record No. 7] El-Hanini was
warned that, if he failed to do so, the Court would dismiss
the Complaint for failure to prosecute. [Id.]
has now responded, claiming that he “tried” to
complete the payment form on multiple occasions but was
“unsuccessful.” [Record No. 8] He provides no
further explanation for his failure to comply with the
Court's clear directives. His vague explanation is
insufficient to explain his continued failure to comply with
the Court's order directing action over six months ago.
Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)
(a pro se litigant is not afforded special
consideration for failure to follow readily comprehended
Court has considered the factors set forth in Wu v. T.W.
Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005), and
concludes that dismissal of El-Hanini's case for failure
to prosecute is warranted. His failure to act in the face of
a clear prior warning that the case would be dismissed is an
indication of willful noncompliance. Lovejoy v.
Owens, 1994 WL 91814, at *2 (6th Cir. March 21, 1994).
Moreover, his incarceration makes the imposition of lesser
sanctions, such as monetary or other penalties, difficult or
this reason alone justifies dismissal of this action without
prejudice, his Complaint is also subject to dismissal for
failure to exhaust his administrative remedies, as well as on
statute of limitations grounds. The Court must conduct a
preliminary review of El-Hanini's Complaint because he
has been granted permission to pay the filing fee in
installments and because he asserts claims against government
officials. 28 U.S.C. §§ 1915(e)(2), 1915A. When
testing the sufficiency of the Complaint, the Court affords
it a forgiving construction, accepting as true all
non-conclusory factual allegations and liberally construing
its legal claims in the plaintiff's favor. Davis v.
Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir.
2012). 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).
requirement that administrative remedies be exhausted prior
to filing suit mandates that those remedies must be exhausted
properly and within the time frames required by the remedy
process. Woodford v. Ngo, 548 U.S. 81, 92-94 (2009).
El-Hanini candidly admits in his Complaint that he did not
exhaust his administrative remedies before he filed suit,
rendering dismissal of the action appropriate upon initial
review. Jones v. Bock, 549 U.S. 199, 214-15 (2007)
(district court may dismiss a Complaint sua sponte
when it is apparent from the face of the Complaint that claim
is barred by affirmative defense).
attempts to excuse his failure to exhaust by claiming that
“Mr. Swanagen (unit manager) and Mr. Smeeks refused to
let me file the grievance by refusing to give me the BP-8, 9
and tort claim forms.” [Record No. 1 at p. 3] He
further claims that he “tried to speak with the warden
at lunch, ” but “he said he was ‘too
busy' to help or listen.” [Record No. 1 at p. 4]
However, the Sixth Circuit has noted that a plaintiff's
allegation that prison officials refused to give him
grievance forms is not enough to excuse the failure to comply
with exhaustion requirement. See Belser v. James,
No. 16-2578, 2017 WL 5479595, *2 (6th Cir. 2017). Thus,
El-Hanini's claims are also subject to dismissal, without
prejudice, for failure to exhaust his administrative
critically, however, El-Hanini's Complaint is time-barred
by the applicable statute of limitations. Although El-Hanini
does not allege a date on which the events allegedly giving
rise to his claims occurred, he does state that this
“same lawsuit was dismissed once before due to failure
of paying fees according to the court order.” [Record
No. 1 at p. 2] This Court may “take judicial notice of
proceedings in other courts of record” and, therefore,
may review the record in the prior action on screening of the
plaintiff's Complaint. See Rodic v. Thistledown
Racing Club, Inc., 615 F.2d 736, 738 (6th Cir.1980);
Granader v. Public Bank, 417 F.2d 75, 82-83 (6th
Cir. 1969). See also Fed. R. Evid. 201(b)(2).
review of the record shows that, in the Complaint filed in
El-Hamini's previous case (which does, in fact, allege
the same claims against the defendants named in this case),
the plaintiff clearly and repeatedly states that the conduct
giving rise to his claims occurred in November 2015, December
2015, and January 2016. El-Hanini v. Federal Bureau of
Prisons et al., No. 5:17-cv-36-KKC (E.D. Ky. 2017),
Record No. 1 (Complaint) at p. 5, 6 (alleging that the events
occurred in November and December 2015); Record No. 13
(Amended Complaint) at p. 1 (alleging that the events
occurred between November 2015 - January 2016). Thus, the
Court may take judicial notice of El-Hanini's previous
allegations that the events giving rise to the claims that
are the subject of this lawsuit occurred between November
2015 and January 2016.
based on El-Hanini's own allegations, his claims are
time-barred. The Court may dismiss a claim plainly barred by
the applicable limitations period upon initial screening. Cf.
Jones, 549 U.S. at 215 (“If the allegations,
for example, show that relief is barred by the applicable
statute of limitations, the complaint is subject to dismissal
for failure to state a claim.”); Castillo v.
Grogan, 52 Fed.Appx. 750, 751 (6th Cir. 2002)
(“When a meritorious affirmative defense based upon the
applicable statute of limitations is obvious from the face of
the complaint, sua sponte dismissal of the complaint
as frivolous is appropriate.”)
the remedy afforded in an action filed pursuant to
Bivens 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 El-Hanini 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); Mitchell v.
Chapman, 343 F.3d 811, 825 (6th Cir. 2003). However, the
question of when civil rights claims accrue is one of federal
law. LRL Properties v. Portage Metro Hous. Auth., 55
F.3d 1097, 1107 (6th Cir. 1995). 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. Friedman
v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir.
very latest, El-Hanini's claims accrued sometime in
January 2016, the date when he became aware of the injury
which forms the basis for his claims. Even construing
El-Hanini's allegations in his favor by assuming that the
last event giving rise to his claims occurred on the last day
of January 2016, his claims were required to have been
brought by January 31, 2017. Although he filed his first
lawsuit on January 24, 2017, that action was dismissed on
April 12, 2017. See El-Hanini v. Federal Bureau of
Prisons, No. 5:17-cv-36-KKC (E.D. Ky. 2017) at Record
No. 1, 16. And even if the Court determined that the statute
of limitations were equitably tolled while his claims were
pending, Irwin v. Dep't of Veterans Affairs, 498
U.S. 89, 96 (1990), such tolling would have ended when his
claims were dismissed. While he still may have had eight days
remaining on the statute of limitations period after the
dismissal of his first lawsuit on April 12, 2017, he did not
file this lawsuit until June 13, 2017. Thus, his claims are
time-barred, and will be dismissed with prejudice. Dellis
v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir.
it is hereby O ...