United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.
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.]
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.
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. Carver seeks $10 million dollars
in compensatory and punitive damages. [R. 4 at 8.]
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.
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.
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.
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.
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.
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)).
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. ...