United States District Court, W.D. Kentucky, Bowling Green Division
N. Stivers, Chief Judge.
Bruce Mitchell Nicholson filed a pro se, in
forma pauperis 42 U.S.C. § 1983/Bivens
complaint. This matter is before the Court for screening
pursuant to 28 U.S.C. § 1915A and McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549
U.S. 199 (2007). For the following reasons, the complaint
will be dismissed.
STATEMENT OF FACTS
sues Federal Bureau of Investigation (FBI) agents Don A.
Wood, Sean E. Walsh, and John Doe, as well as Kentucky State
Police Troopers Cody Kromer and Nicholas Rice. He alleges
that on July 16, 2012, the commercial motor vehicle he was
driving was unlawfully searched in violation of the Fourth
Amendment and property was unlawfully seized from it. He
alleges that on that date his Fourth Amendment privacy right
was violated because compartments and containers within the
vehicle were searched. He alleges that Defendants Kromer and
Rice failed to intervene to protect Plaintiff's
constitutional rights. He also alleges that Defendants failed
to preserve possibly exculpatory evidence seized on that
date. He further alleges that information from the illegal
search was used to obtain a warrant on January 10, 2013,
making that warrant “tainted” and any evidence
therefrom the “fruit of the poisonous tree.” He
also alleges that on July 16, 2012, his due-process rights
were violated when Defendants rummaged through his personal
possessions and his truck was hauled away by a “third
party civilian.” Finally, he alleges that the seizure
of property on January 10, 2013, at Kelly's Wrecker
Service pursuant to the warrant was a constitutional
violation and that property should have been taken into a
secure police facility but was instead contaminated. He
contends that all items seized were fruits of the illegal
search and seizure conducted on July 12, 2012.
relief, Plaintiff requests the “return of
property/suppression of evidence, ” nominal damages,
and a declaration that Defendants acted in violation of the
prisoner initiates a civil action seeking redress from a
governmental entity, officer, or employee, the trial court
must review the complaint and dismiss the action, if the
Court determines that it 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. See 28 U.S.C. § 1915A(b)(1) and (2). A
claim is legally frivolous when it lacks an arguable basis
either in law or in fact. Neitzke v. Williams, 490
U.S. 319, 325 (1989). The Court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Id. at 327. When determining
whether a plaintiff has stated a claim upon which relief can
be granted, the Court must construe the complaint in a light
most favorable to Plaintiff and accept all of the factual
allegations as true. Prater v. City of Burnside,
Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a
reviewing court must liberally construe pro se
pleadings, Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam), to avoid dismissal, a complaint must
include “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
regarding the July 16, 2012, incident
sues both federal and state government actors. A
Bivens claim is a judicially created counterpart to
a 42 U.S.C. § 1983 civil-rights action and is properly
brought only against federal officials, who have allegedly
denied a plaintiff's constitutional rights, in their
individual capacities. Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388, 390-97
(1971); F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994)
(“An extension of Bivens to agencies of the
Federal Government is not supported by the logic of
Bivens itself.”). Thus, Plaintiff's claims
against the FBI Defendants are brought under Bivens
while his claims against the state Defendants are brought
under § 1983.
claims asserted under § 1983 and Bivens are
governed by the state personal injury statute of limitations.
Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir. 2007)
(citing Wilson v. Garcia, 471 U.S. 261, 280 (1985));
Owens v. Okure, 488 U.S. 235, 239-40 (1998).
Personal injury actions in Kentucky “shall be commenced
within one (1) year after the cause of action accrued.”
Ky. Rev. Stat. § 413.140(1); Collard v. Ky. Bd. of
Nursing, 896 F.2d 179, 182 (6th Cir. 1990). Although the
statute of limitations is an affirmative defense, a court may
raise the issue sua sponte if the defense is obvious
from the face of the complaint. Fields v. Campbell,
39 Fed.Appx. 221, 223 (6th Cir. 2002) (citing Haskell v.
Washington Twp., 864 F.2d 1266, 1273 (6th Cir. 1988)).
the applicable statute of limitations is determined by state
law, the date on which the statute of limitations begins to
run is determined by federal law. Eidson v. Tenn.
Dep't of Children's Servs., 510 F.3d 631, 635
(2007). “[I]t is the standard rule that accrual occurs
when the plaintiff has a complete and present cause of action
. . . that is, when the plaintiff can file suit and obtain
relief.” Wallace v. Kato, 549 U.S. 384, 388
(2007) (internal quotation marks, brackets, and citations
Plaintiff raises claims of unlawful search and seizure,
violation of his privacy rights under the Fourth Amendment
because of the search, that Defendants Kromer and Rice failed
to intervene to stop constitutional violations, and Fifth and
Fourteenth Amendment due-process claims for failure to
protect/preserve evidence, all occurring on July 16, 2012.
According to his complaint, Plaintiff was present during the
search on July 16, 2012, and, thus, the statute of
limitations began to run at that time. See, e.g.,
Michel v. City of Akron, 278 Fed.Appx. 477, 480 (6th
Cir. 2008) (“[T]he statute of limitations on
Michel's Fourth Amendment claims began to run from the
search on November 23, 2004.”).
the mailbox rule, this action is deemed filed when presented
to prison officials for mailing. Miller v. Collins,
305 F.3d 491, 497-98 (6th Cir. 2002) (citing Houston v.
Lack, 487 U.S. 266 (1988)). The complaint in this action
was signed on September 12, 2018, and, absent contrary
evidence, a court will assume the prisoner gave his petition
to prison officials on the date he signed it. Wampler v.
Mills, 60 Fed.Appx. 594, 596 (6th Cir. 2003). Thus,
considering Plaintiff's complaint as filed on September
12, 2018, it was not filed until over six years from the July
16, 2012, search, and his claims arising from that search are
barred by the statute of limitations.
regarding January 10, ...