United States District Court, W.D. Kentucky, Louisville Division
GLENN D. ODOM, II, Plaintiff,
KIMBERLY KELLEY, Defendant.
MEMORANDUM OPINION AND ORDER
J. Hale, United States District Court.
Kimberly Kelley has filed a motion for summary judgment (DN
30). Plaintiff has responded (DN 33). The matter being ripe,
the Court will deny the summary-judgment motion for the
first argument is that the case should be dismissed under
Fed.R.Civ.P. 41(b) because Plaintiff failed to provide
Defendant with relevant records or to certify that he had
done so or to file his pretrial memorandum as required by the
Amended Scheduling Order. Second, Defendant argues that
Plaintiff's claim is barred by the one-year statute of
response (DN 33), Plaintiff argues that summary judgment in
Defendant's favor is not appropriate because Defendant
has not responded to his discovery requests.
dismissal under Rule 41(b)
Rule 41(b), “If the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it.”
“Because disposition of claims on the merits is
favored, however, the harsh sanction of dismissal for failure
to prosecute is ordinarily limited to cases involving
egregious conduct by particularly dilatory plaintiffs, after
‘less dire alternatives' have been tried without
success.” Noble v. U.S. Postal Serv., 71
Fed.Appx. 69, 69 (D.C. Cir. 2003).
filed notices (DNs 27 and 29) to this Court stating that he
was not neglecting this action but that the Kentucky State
Penitentiary refused to give him legal documents necessary to
file appropriate motions to prove that the Kentucky State
Reformatory withheld his legal documents for eight weeks.
Thus, although Plaintiff failed to meet certain deadlines set
forth by the Court, he has offered some explanation as to
why. Defendant does not argue that Plaintiff's
dilatoriness has been prejudicial to her. Neither has she
asked for nor has the Court imposed “‘less dire
alternatives'” on Plaintiff. The Court finds that
dismissal of Plaintiff's case pursuant to Rule 41(b) is
argues that Plaintiff's claim is barred by the one-year
statute of limitations because the events which form the
basis of his claim took place on January 30, 2016, and
Plaintiff did not file his complaint until February 27, 2017,
more than a year later.
42 U.S.C. § 1983 does not provide a statute of
limitations, federal courts borrow the forum state's
statute of limitations for personal injury actions.
Wilson v. Garcia, 471 U.S. 261, 275-80 (1985). Thus,
in Kentucky, § 1983 actions are limited by the one-year
statute of limitations found in Ky. Rev. St. §
413.140(1)(a). Collard v. Ky. Bd. of Nursing, 896
F.2d 179, 182 (6th Cir. 1990). “[T]he statute of
limitations begins to run when the plaintiff knows or has
reason to know of the injury which is the basis of his action
and that a plaintiff has reason to know of his injury when he
should have discovered it through the exercise of reasonable
diligence.” Id. at 183.
Defendant erroneously uses the date on which the complaint
was docketed as the date it was filed. Because Plaintiff is a
prisoner, his complaint is considered filed on the date that
he gave it to prison authorities to mail, not the date that
it is actually filed in the docket. Here, his complaint
indicates that Plaintiff gave it to prison authorities for
mailing in February 2017 but does not provide the date. Thus,
it could have been given to prison authorities for mailing as
early as February 1, 2017.
Sixth Circuit Court of Appeals has explained:
The defendants' focus on the court's date stamp
overlooks the “prison mailbox rule.” Under this
relaxed filing standard, a pro se prisoner's complaint is
deemed filed when it is handed over to prison officials for
mailing to the court. See Richard v. Ray, 290 F.3d
810, 812-13 ...