Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kirkwood v. Vickery

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

March 6, 2018

KEITH EDWIN KIRKWOOD PLAINTIFF
v.
CRYSTAL VICKERY, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          JOSEPH H. MCKINLEY, JR., CHIEF JUDGE.

         This matter is before the Court on a motion to dismiss by defendants Crystal Vickery, Jarrett Backhurst, Jeremy McLaughlin, Tracy Griffith, Bradley Ross, Gary Lutz, Scott Gipson, and Russell Nichols. (DN 24.) Fully briefed, this matter is ripe for decision.

         I. Background

         Plaintiff Kirkwood originally filed a complaint in the United States Court of Federal Claims, naming the United States as the sole defendant. (DN 7.) However, the facts in the complaint largely pertained to events occurring in Hopkins County, Kentucky, and accused many of the defendants now presently in this action of violating Kirkwood's constitutional rights. (Id.) The Court of Federal Claims transferred the case to this Court (DN 7-3), and the complaint was dismissed on preliminary review for failing to state a claim. (DN 12.) Kirkwood was granted leave to amend his complaint, which he has done by filing three amended complaints.[1]

         The first amended complaint is against employees of the Hopkinsville County Jail: Vickery, Backhurst, McLaughlin, Griffith, Ross, Lutz, and Joe Blue. (DN 13.) Kirkwood alleges that these defendants violated his constitutional rights when they placed him in a restraining chair, used pepper spray on him, placed him in isolation, and denied him his medication for schizophrenia while he was in custody from April 16, 2012, to June 22, 2012. (Id.) The second amended complaint is against the City of Madisonville and Hopkins County. (DN 14.) Kirkwood alleges that these governmental entities are liable for the constitutional violations that occurred in the jail, as well as those that occurred when he was arrested the morning of April 16, 2012. (Id.) The third amended complaint is also against the City of Madisonville and Hopkins County, as well as two Madisonville Police Officers: Russell Nichols and Scott Gipson. (DN 15.) Kirkwood alleges that these defendants violated his constitutional rights when they searched his car, seized a firearm from it, tased him, and arrested him. (Id.)

         The Court reviewed the amended complaints pursuant to 18 U.S.C. § 1915A and dismissed all claims against the City of Madisonville, Hopkins County, and Blue.[2] (DN 16.) All remaining defendants have now moved to dismiss all claims against them, as Kirkwood has not brought these claims within the applicable statute of limitations.

         II. Standard of Review

         Upon a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), a court “must construe the complaint in the light most favorable to plaintiffs, ” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), “accept all well-pled factual allegations as true, ” id., and determine whether the “complaint . . . states a plausible claim for relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Under this standard, the plaintiff must provide the grounds for its entitlement to relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard when it “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint falls short if it pleads facts “merely consistent with a defendant's liability” or if the alleged facts do not “permit the court to infer more than the mere possibility of misconduct.” Id. at 678-79. Instead, a complaint “must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Id. at 677 (quoting Fed.R.Civ.P. 8(a)(2)). “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         III. Discussion

         The defendants argue that all of Kirkwood's remaining claims should be dismissed, as they fall outside the applicable statute of limitations. “In Kentucky, § 1983 claims are governed by the one-year statute of limitations contained in [KRS §] 413.140(1)(a)[.]” Gray v. Lexington-Fayette Urban Cty. Gov., 2013 WL 3322609, at *3 (E.D. Ky. July 1, 2013) (citing Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990)). Kirkwood alleges that the defendants violated his constitutional rights in 2012, and he brought the present action in 2017. Thus, it is clear from the face of the complaints that Kirkwood has not brought his claims within the one-year statute of limitations.

         However, Kirkwood argues that there are two grounds upon which the statute of limitations should be tolled so as to allow his claims to proceed. He argues that he justifiably relied on the advice of another as to when he must bring his claims and that he was under a disability when his claims accrued. Because the defendants have raised the statute of limitations as an affirmative defense through a motion to dismiss, as opposed to summary judgment, Kirkwood need not offer proof at this time as to whether the statute should be tolled. See Anderson v. City of E. Cleveland, 2013 WL 1910410, at *3 (N.D. Ohio May 8, 2013) (“When deciding a motion to dismiss under Federal Civil Rule 12(b)(6), the function of the Court is to test the legal sufficiency of the Complaint”) (citations omitted). Instead, Kirkwood's claims may proceed if he has plausibly alleged the grounds upon which he seeks to toll the statute of limitations, providing specific facts to support his argument. See Horn v. City of Covington, 2015 WL 4042154, at *14 (E.D. Ky. July 1, 2015) (because defendants raised statute of limitations in a motion to dismiss, “the Court looks to Horn's Amended Complaint to see if the facts alleged could lead to a plausible showing of unsound mind” to toll the statute).

         Beginning with his argument that he justifiably relied on the advice of another as to when he must bring his claims, Kirkwood has not plausibly alleged any facts upon which the Court could toll the statute of limitations. In his second amended complaint, Kirkwood asks the Court to consider “[t]he exception on the grounds of ‘delay in discovery of the injury or on the reasonable reliable on a trusted person' (that trusted person being NAMI, National Alliance of the Mentally Ill.” (DN 14, at 6.) However, Kirkwood does not include any facts that would plausibly show his reliance on the advice of another. He does not state, for example, who exactly NAMI is, what his relationship with it was, what advice they gave him in regards to when he must bring his claims, and why he trusted their advice. He has only offered the legal conclusion that he is entitled to tolling under the “reasonable reliance on a trusted person” exception, and ‘[t]he Court is not bound to accept as true a legal conclusion couched as a factual allegation.” Anderson, 2013 WL 1910410, at *3 (quotations and citations omitted). Therefore, the Court will not toll the statute of limitations under this exception.

         However, Kirkwood has pled facts that plausibly show he was under a disability at the time his claims accrued. In Kentucky,

If a person entitled to bring [an] action . . . was, at the time the cause of action accrued, an infant or of unsound mind, the action may be brought within the same number of years after the removal of the disability or death of the person, whichever happens first, allowed to a ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.