United States District Court, W.D. Kentucky, Paducah
B. Russell, Senior Judge.
James Odell Whittemore filed this pro se action
proceeding in forma pauperis. This matter is now
before the Court on initial review of the complaint pursuant
to 28 U.S.C. § 1915(e) 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 reasons that follow, the instant
action will be dismissed.
filed the complaint on a general civil complaint form naming
as Defendants Cody Hamby and the Kentucky State Police Post
1. Plaintiff states that on June 17, 2015, in Hickory,
Kentucky, Defendant Hamby, a Kentucky State Trooper,
“handcuffed me and beat me to the point of
unconsciousness.” He asserts, “I woke up in the
ambulance while being transported to the Jackson Purchase
Hospital Mayfield, Kentucky.” He further states,
“I was di[ag]nosed with a facial fracture with multiple
abrasions to my wrists and back. The Ky State Police condone
all action of Trooper Hamby.” In the section of the
form requesting the amount in controversy, he states,
“300, 000.00 pain and suffering. I am a mental patient
an I still have mental issues with the beating received from
Mr. Hamby.” As relief, Plaintiff seeks compensatory and
Plaintiff is proceeding in forma pauperis, this
Court must review the instant action. 28 U.S.C. §
1915(e); McGore, 114 F.3d at 608-09. Upon review,
the Court must dismiss a case at any time if it determines
that an action 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. § 1915(e)(2)(B). This Court
recognizes that pro se pleadings are to be held to a
less stringent standard than formal pleadings drafted by
lawyers. Haines v. Kerner, 404 U.S. 519 (1972);
Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991).
However, the duty “does not require us to conjure up
unpled allegations.” McDonald v. Hall, 610
F.2d 16, 19 (1st Cir. 1979).
Court construes the allegations as asserting an
excessive-force claim under the Fourth Amendment. A claim for
a violation of constitutional rights must be brought under 42
U.S.C. § 1983. See Thomas v. Shipka, 818 F.2d
496, 500 (6th Cir. 1987), vacated and remanded on other
grounds, 488 U.S. 1036 (1989) (“[I]t is
unnecessary and needlessly redundant to imply a cause of
action arising directly under the Constitution where Congress
has already provided a statutory remedy of equal
effectiveness through which the plaintiff could have
vindicated her constitutional rights.”). Therefore, the
Court construes the complaint as brought under § 1983.
statute of limitations for § 1983 actions is governed by
the limitations period for personal-injury cases in the state
in which the cause of action arose. Wallace v. Kato,
549 U.S. 384, 387 (2007). In Kentucky, § 1983 actions
are limited by the one-year statute of limitations found in
Ky. Rev. Stat. § 413.140(1)(a). Collard v. Ky. Bd.
of Nursing, 896 F.2d 179, 182 (6th Cir. 1990). Although
state law establishes the statute of limitations for §
1983 actions, federal law controls on the issue of when the
statute of limitations begins to run. Sevier v.
Turner, 742 F.2d 262, 272 (6th Cir. 1984). Federal law
establishes that the § 1983 statute of limitations
accrues when the plaintiff knew or should have known of the
injury that forms the basis of the claim alleged in the
complaint. Ruff v. Runyon, 258 F.3d 498, 500 (6th
Cir. 2001). When the face of the complaint shows that an
action is time-barred, the case may be dismissed summarily
upon initial screening. Jones v. Bock, 549 U.S. 199,
states on the face of the complaint that the alleged incident
of excessive force occurred on June 17, 2015. Therefore, it
is clear that Plaintiff knew of the alleged injury more than
one year before the complaint was filed on November 29, 2018.
Accordingly, the complaint is barred by the statute of
limitations and must be dismissed as frivolous.
separate Order dismissing the action will be entered