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Carver v. Avina

United States District Court, E.D. Kentucky, Southern Division, London

September 28, 2018

RUSSELL CARVER, III, Plaintiff,
v.
OFFICER AVINA, et al., Defendants.

          MEMORANDUM OPINION & ORDER

          GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.

         Plaintiff Russell Carver is an inmate formerly confined at the Federal Correctional Institution (FCI)-Manchester in Manchester, Kentucky. Proceeding without counsel, Carver has filed a civil rights complaint against prison officials asserting claims under 28 U.S.C. § 1331, pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). [R. 1; R. 4.]

         Defendants Officer Avina, Counselor Crase, Officer Church, Counselor Campbell and S. Butler (collectively, “Defendants”) have filed a motion to dismiss or, in the alternative, motion for summary judgment. [R. 37.] Pursuant to the Court's Order entered July 31, 2018, Carver was required to file a response to Defendants' motion on or before September 13, 2018. [R. 42.] However, that time period has now expired, and no response has been filed by Carver. Thus, this matter is ripe for review.

         I

         Carver's complaint alleges that, while Carver was confined at FCI-Manchester, he was exposed to secondhand smoke, or Environmental Tobacco Smoke (ETS), in violation of the Eighth Amendment prohibition against cruel and unusual punishment, as well as 18 U.S.C. § 1791(a)(2) and Bureau of Prisons (BOP) policy. [R. 1; R. 4 at 2.[1] Carver seeks $10 million dollars in compensatory and punitive damages. [R. 4 at 8.]

         In their motion, Defendants argue that Carver's complaint should be dismissed because: 1) the Supreme Court has never recognized a similar Eighth Amendment claim against federal correctional officers, in their individual capacity, for exposing an inmate to secondhand smoke, and Bivens should not be extended because special factors counsel hesitation; 2) Carver's complaint is untimely; 3) Carver fails to state a claim for which relief may be granted; and 4) the Defendants are entitled to qualified immunity. [R. 37-1] In the alternative, Defendants seek summary judgment. Id.

         Before addressing the merits of Defendants' motion, the Court notes that, on July 2, 2018, the Court entered an order directing Carver to file a response to Defendants' motion within 45 days and specifically warned him that, if he failed to do so, the Court may dismiss his case for failure to prosecute, see Fed. R. Civ. P. 41(b), or grant Defendants' motion for any reason adequately supported by the record, see Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991). [R. 38.] On July 30, 2018, Carver filed a motion to appoint counsel or, in the alternative, motion for an extension of time to retain counsel. [R. 41.] On July 31, 2018, the Court entered an Order denying Carver's request for counsel but providing him with an additional 28 days to file a response to Defendants' motion. [R. 42.] The Court's Order specified that Carver must file a response to Defendants' motion on or before September 13, 2018. Id.

         Carver's extended response deadline has now expired, and Carver has not filed any response or taken any other action in this case. Carver was specifically warned that his failure to file a response may result in the dismissal of his case for failure to prosecute. Dismissal is generally warranted where the party fails to act in the face of a clear prior warning that the case would be dismissed. Bowles v. City of Cleveland, 129 Fed.Appx. 239, 244 (6th Cir. 2005). Thus, Carver's failure to respond alone would justify dismissal of his Complaint.

         Regardless, in the interest of completeness and finality, the Court will also consider the substantive arguments set forth by Defendants in their motion to dismiss or, in the alternative, motion for summary judgment.

         II

         A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the plaintiff's complaint. Gardner v. Quicken Loans, Inc., 567 Fed.Appx. 362, 364 (6th Cir. 2014). When addressing a motion to dismiss, the Court views the complaint in the light most favorable to the plaintiff and accepts as true all ‘well-pleaded facts' in the complaint. D'Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). Because Carver is proceeding without the benefit of an attorney, the Court reads his complaint to include all fairly and reasonably inferred claims. Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).

         A

         The Court agrees that Carver's complaint must be dismissed as untimely. Although Carver's amended complaint does not specify the date on which the events giving rise to the complaint occurred, his original complaint and his administrative remedy request submitted with his complaint both specify that he was allegedly exposed to secondhand smoke on September 16, 2014. [R. 1 at 3; R. 1-1 at 5, 8; R. 1-2 at 3-4.] Indeed, throughout the administrative remedy process, the only specific instance of exposure to secondhand smoke identified and relied upon by Carver as the basis for his claim allegedly occurred on September 16, 2014. [R. 1-2 at 3, R. 37-2 at 58-66.] Carver further states that he began to have physical symptoms that he attributed to his exposure to secondhand smoke on November 18, 2014. [R. 1-1 at 5.] Thus, at the very latest, Carver's claim accrued on November 18, 2014, when he became aware of the injury which forms the basis of his claims, his respiratory complaints allegedly caused by his exposure to secondhand smoke. Estate of Abdullah ex rel. Carswell v. Arena, 601 Fed.Appx. 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. 111, 122 (1979)).

         In Bivens actions, federal courts “apply the most analogous statute of limitations from the state where the events giving rise to the claims occurred.” Baker v. Mukasey, 287 Fed.Appx. 422, 424 (6th Cir. 2008). Carver's claims arose in Kentucky and, therefore, Kentucky's one-year statute of limitations for asserting personal injury claims applies to his federal constitutional claim. See id.; see also Ky. Rev. Stat. Ann. § 413.140(1)(a); Hornback v. ...


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