United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge.
Leonard Clark has filed a pro se civil rights
complaint pursuant to the doctrine announced in Bivens v.
Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971). [R. 1] This matter is before the Court to conduct the
initial screening required by 28 U.S.C. §§
complaint and the attached materials indicate that his
trachea was crushed in an accident in 1994. He has been a
federal prisoner since 2003 following his arrest and
conviction for drug trafficking in Chicago. In 2014, an
otolaryngologist in Illinois recommended surgery to
reconstruct his trachea. After Clark was transferred to the
federal penitentiary in Pine Knot, Kentucky, in August 2015 a
different otolaryngologist recommended “corking”
the tracheostomy instead. Clark protested, and in August 2016
Clark was evaluated by Dr. Santiago, yet another
otolaryngologist. Dr. Santiago expressed concern that Clark
might be suffering from tracheal stenosis (a narrowing of the
windpipe which can cause difficulty breathing), and
recommended that a CT scan be performed and that he be
assessed by a pulmonary specialist. Clark complains that when
he was taken in February 2017 to see Dr. Mahen, an outside
cardiothoracic physician, unidentified prison medical staff
intentionally failed to send along the medical records Dr.
Mahen needed to properly evaluate him. He further alleges
that Dr. Mahen also recommended a CT scan, but that Clinical
Director Vibeke Dankwa and other unnamed members of the
Utilization Review Committee (“URC”) denied that
request. Clark alleges that Assistant Warden B. Barron failed
to conduct an adequate investigation before “rubber
stamping” the URC's decision and denying
Clark's inmate grievance in March 2017. He further
alleges that after his inmate grievance appeals were denied
by the Bureau of Prisons' Regional Director in May 2017
and by the Central Office Director in July 2017, the
reconstructive surgery was not performed. As a result, Clark
indicates that he has difficulty breathing and periodically
suffers from infections or coughs up blood. [R. 1-4 at Page
ID #20-21, 23-30]
separately asserts that after he first protested the August
2015 recommendation to “cork” his tracheostomy,
BOP physicians assistant West and Health Services
Administrator R. Jones retaliated against him. Specifically,
at some point before March 2016 they determined that he would
no longer be allowed to clean the tracheostomy tube with
peroxide or saline water in the medical department. Instead,
they required Clark to clean the tube in his cell, and would
only provide him with two care kits per week to do so. [R.
1-4 at Page ID #22-23]
Court has thoroughly reviewed Clark's complaint and its
supporting materials, but concludes that it must be dismissed
because the claims within it are barred by the statute of
limitations. The Court may dismiss a claim plainly barred by
the applicable limitations period upon initial screening.
Jones v. Bock, 549 U.S. 199, 215 (2007) (“If
the allegations, for example, show that relief is barred by
the applicable statute of limitations, the complaint is
subject to dismissal for failure to state a claim.”);
Franklin v. Fisher, 2017 WL 4404624, at *2 (6th Cir.
2017) (“The district court properly dismissed
Franklin's complaint for failure to state a claim upon
which relief may be granted because it is obvious from the
face of her complaint that almost all of her claims are
barred by the applicable statute of limitations.”).
Clark complains of actions taken by various prison officials
beginning in August 2016 and concluding, at the latest, when
the BOP's Central Office denied his appeal regarding
receiving a CT scan and/or reconstructive surgery in July
2017. His claims accrued no later than this date once was
aware of the basis for them. 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)). Because the
remedy afforded in a Bivens action is entirely
judge-made, there is no statutory limitations period.
Instead, federal courts apply the most analogous statute of
limitations from the state where the events occurred.
Wilson v. Garcia, 471 U.S. 261, 268-71 (1985). The
events about which Clark now complains occurred in Kentucky;
therefore, Kentucky's one-year statute of limitations for
asserting personal injuries applies. Ky. Rev. Stat. §
413.140(1)(a); Hornback v. Lexington-Fayette Urban Co.
Gov't, 543 Fed.Appx. 499, 501 (6th Cir. 2013);
Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir.
2003). However, Clark did not file suit until December 22,
2018, the date he signed his complaint. See Brand v.
Motley, 526 F.3d 921, 925 (6th Cir. 2008) (“... a
pro se prisoner's complaint is deemed filed when it is
handed over to prison officials for mailing to the court. ...
absent contrary evidence, a prisoner does so on the date he
or she signed the complaint.”). This is more than one
year after the latest of the dates when his claims accrued,
and his complaint is therefore time-barred. Dellis v.
Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001).
Clark's claims are independently subject to dismissal on
several other grounds, but the foregoing is sufficient to
warrant dismissal of the complaint.
it is ORDERED as follows:
1. Leonard Clark's complaint [R. 1] is
DISMISSED, with prejudice.
2. The Court will enter an appropriate judgment.
3. This matter is STRICKEN from the active
 When testing the sufficiency of the
plaintiff's complaint, the Court affords it a forgiving
construction, accepting as true all non-conclusory factual
allegations and liberally construing its legal claims in the
plaintiff's favor. Davis v. Prison Health
Servs., 679 F.3d 433, 437-38 (6th Cir. 2012). A district
court must dismiss any claim that 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. Hill v. Lappin, 630 F.3d 468, 470-71
(6th Cir. 2010).
 Indeed, in October 2017 Clark filed a
petition for a writ of habeas corpus based upon the same
medical claims asserted here. That petition was denied for
failure to pay the filing fee. Clark v. Ormond, No.
6: 17-CV-293-DCR (E.D. Ky. 2017). Clark filed a second habeas
petition one month later and paid the filing fee, but the
Court denied that petition without prejudice in November
2017, explaining to Clark that he must assert his medical
claims in a civil rights complaint. The Court sent Clark a
civil rights complaint form, a motion to proceed in forma
pauperis, and a certificate of inmate account. Clark
v. Ormond, No. 6: 17-CV-318-GFVT (E.D. Ky. 2017). In
2018 Clark filed two habeas petitions challenging his
sentence, but did not file a complaint regarding his medical
care until he filed this ...