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Portee v. Jones

United States District Court, E.D. Kentucky, Southern Division, London

June 5, 2019

DANIEL C. PORTEE, Plaintiff,
RHONDA JONES, et al. Defendants.



         Plaintiff Daniel C. Portee is an inmate currently confined at the United States Penitentiary-Coleman I in Coleman, Florida. Proceeding without an attorney, Portee filed a civil rights action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) against prison officials at United States Penitentiary-McCreary (“USP-McCreary”) in Pine Knot, Kentucky. [R. 1] Portee's claims against Defendants Lt. Long and Acting Lieutenant Reams were previously dismissed by separate Court Orders. [R. 41, 45] Defendants Rhonda Jones, Christopher Davis, T. Cimarossa, Janice Keith, Elizabeth Barnes, Maria Marreo, and Stephine Sumner (collectively, “Defendants”), by counsel, have filed a motion to dismiss or, in the alternative, motion for summary judgment with respect to Portee's remaining claims. [R. 49] Pursuant to the Court's Order entered March 29, 2019, Portee was required to file a response to Defendants' motion on or before April 15, 2019. [R. 54] However, that time period has now expired, and no response has been filed by Portee. Thus, this matter is ripe for review.


         The allegations of Portee's complaint are unclear, somewhat repetitive, and confusingly labeled. However, Portee's complaint generally relates to his medical treatment, including the management of his pain and his use of a four-wheeled walker with a seat, while he was incarcerated at USP-McCreary.

         Specifically, Portee asserts the following claims: 1) Defendant Jones acted with deliberate indifference to Portee's serious medical needs in violation of Portee's rights under the Eighth Amendment by failing to provide Portee with a prescribed medical treatment, specifically a four-wheel walker with a seat that was operational and safe to use for its intended purposes [R. 1 at p. 3-9, “Factual Allegations, ” Count I, ¶¶ 9-50, 175-177]; 2) Defendant Jones' failure to provide Portee with the appropriate full-size four-wheel walker with a seat to accommodate his size and weight violated Portee's rights under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq, and Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794 [R. 1 at p. 9-10, “Factual Allegations, ” Count II, ¶¶ 51-52]; 3) Defendants Jones, Cimarossa, Keith, Barnes, Davis and Marrero violated Portee's Eighth Amendment rights in multiple ways, including by failing to provide him with pain medication for injuries Portee sustained to his head, left elbow, and lower back when Portee was housed at another Bureau of Prisons (“BOP”) facility, failing to provide medication for sleep and memory issues, and failing to provide treatment for his reports of rectal bleeding [R. 1 at p. 10-20, “Factual Allegations, ” Count III, ¶¶ 54-115]; 4) Defendants Jones, Davis, Cimarossa, Keith, and Marreo violated Portee's Eighth Amendment rights in various ways, including by misleading Portee to believe that he would be seen by a medical provider or physician to address his medical concerns, denying Portee adequate pain medication, denying Portee's sick call requests to see a physician for follow-up medical treatment, refusing to address Portee's medical concerns, denying Portee outside medical testing of an EMG, and denying Portee's use of his four-wheel walker with seat [R. 1 at p. 20-25, “Causes of Action, ” Count I, ¶¶ 116-147]; 5) On October 5, 2015, Defendant Sumner violated Portee's Eighth Amendment rights by issuing Portee disciplinary charges for being in an unauthorized area [R. 1 at p. 26-30, “Causes of Action, ” Count II, ¶¶ 160-167; Count III, p. 32, ¶¶ 183-84]; and 6) Defendants Jones and Sumner violated Portee's rights under the ADA and RA in relation to Portee's use of a four-wheeled walker with seat [R. 1 at p. 31-32, “Causes of Action, ” Count II, ¶¶ 178-182].

         Thus, in sum, Portee asserts various Eighth Amendment claims related to his medical care (numbers 1, 3, and 4 listed above), claims under the ADA and RA related to his use of a four-wheeled walker with seat (numbers 2 and 6 above), and claims under the Eighth Amendment related to disciplinary charges (number 5 above). As relief, Portee seeks “normal, compensatory, and punitive damages, ” as well as “all other just and equitable relief that this Honorable Court deems necessary.” [R. 1 at p. 33]

         In their motion, Defendants argue that Portee's complaint should be dismissed because it is untimely; Portee fails to state a claim for which relief may be granted for violation of the First and Eighth Amendments, as well as for violation of the ADA and/or RA; Defendants Cimarossa and Davis are entitled to statutory immunity; and all of the Defendants are entitled to qualified immunity. [R. 49-1] In the alternative, Defendants seek summary judgment. [Id.]


         Before addressing the merits of Defendants' motion, the Court notes that, on February 6, 2019, the Court entered an order directing Portee 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. 50]. On March 26, 2019, after a copy of the Court's Order denying Portee's “motion to stay/motion for appointment of counselor” was returned as undeliverable [R. 52, 53], the Court entered an Order noting that, although Portee had not updated his address of record with the Court, a review of the BOP's “Inmate Locater” website showed that Portee had been transferred to USP-Coleman I. [R. 54][1] Thus, in light of these circumstances, the Court directed that the Clerk of the Court update Portee's address of record and sua sponte extended the time by which Portee must file his response through and including April 15, 2019. [Id.]

         Portee's extended response deadline has now expired, and Portee has not filed any response to Defendants' motion. Portee 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, Portee's failure to respond alone would justify dismissal of his Complaint. Regardless, 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.


         A 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 Portee 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. 2012).

         Here, Defendants move both to dismiss and for summary judgment, attaching and relying upon declarations extrinsic to the pleadings in support of their motion. [R. 49] Thus, the Court will treat Defendants' motion to dismiss the complaint as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d); Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). See also Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004) (where defendant moves both to dismiss and for summary judgment, plaintiff is on notice that summary judgment is being requested, and the court's consideration as such is appropriate where the nonmovant submits documents and affidavits in opposition to summary judgment).

         A motion under Rule 56 challenges the viability of another party's claim by asserting that at least one essential element of that claim is not supported by legally sufficient evidence. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). A party moving for summary judgment must establish that, even viewing the record in the light most favorable to the nonmovant, there is no genuine dispute as to any material fact and that the party is entitled to a judgment as a matter of law. Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014). The burden then shifts to the nonmoving party to “come forward with some probative evidence to support its claim.” Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.1994).

         If the moving party demonstrates that there is no genuine dispute as to any material fact and that they are entitled to a judgment as a matter of law, that party is entitled to summary judgment. Kand Medical, Inc. v. Freund Medical Products, Inc., 963 F.2d 125, 127 (6th Cir. 1992). The moving party does not need its own evidence to support this assertion but need only point to the absence of evidence to support the claim. Turner v. City of Taylor, 412 F.3d 629, 638 (6th Cir. 2005). The responding party cannot rely upon allegations in the pleadings, but must point to evidence of record in affidavits, depositions, and written discovery which demonstrates that a factual question remains for trial. Hunley v. DuPont Auto, 341 F.3d 491, 496 (6th Cir. 2003); United States v. WRW Corp., 986 F.2d 138, 143 (6th Cir. 1993) (“A trial court is not required to speculate on which portion of the record the non-moving party relies, nor is there an obligation to ‘wade through' the record for specific facts.”). However, if the responding party's allegations are so clearly contradicted by the record that no reasonable jury could adopt them, the court need not accept them when determining whether summary judgment is warranted. Scott v. Harris, 550 U.S. 372, 380 (2007). The Court must grant summary judgment if the evidence would not support a jury verdict for the responding party with respect to at least one essential element of his claim. Ford v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).

         A. Timeliness of Portee's Eighth Amendment Claims

         The Court agrees that at least some of Portee's Eighth Amendment claims alleging that various defendants were deliberately indifferent to his serious health needs are untimely. Portee signed and mailed his complaint on January 6, 2017. [R. 1] 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 Portee 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) (“Bivens claims have a one year statute of limitations under Kentucky law.”).

         A claim accrues when the plaintiff becomes aware of the injury which forms the basis for his claims. 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)). Where, as here, the operative facts are not in dispute, the Court determines as a matter of law whether the statute of limitations has expired. Highland Park Ass'n of Businesses & Enterprises v. Abramson, 91 F.3d 143 (Table) (6th Cir. 1996) (citing Hall v. Musgrave, 517 F.2d 1163, 1164 (6th Cir.1975)). See also Fox v. DeSoto, 489 F.3d 227, 232 (6th Cir. 2007).

         1. Portee's Eighth Amendment Claims Related to his Walker

         With respect to Portee's Eighth Amendment claims related to his walker, Portee alleges that, prior to his arrival at USP-McCreary in December 2014, medical personnel had provided him with a four-wheel walker with a seat to assist him with walking and to provide him a seat when Portee's body felt unstable. [R. 1 at p. 3] According to Portee, on or about May 25, 2015, he showed Defendant Jones his walker and explained that it was unsafe and needed to be repaired or replaced. [Id. at p. 4] Portee alleges that, on or about July 8, 2015, he was issued a new walker that was much smaller and did not have a seat. [Id. at p. 5] Portee alleges that he complained to Jones that this walker was too small for his size and weight, but that she said that it was all she had in stock. [Id. at p. 5-6] He further states that, on July 14, 2015, he submitted a cop-out to Jones concerning the pain his new walker was causing him due to bolts that embedded into his thighs when he sat on the walker. [Id. at p. 6] He alleges that he exhausted his administrative remedies as it relates to the issues related to his walker in Administrative Remedy ID# 831281, which was denied by the Central Office on October 28, 2015. [Id. at p. 10]

         Portee became aware that his walker was allegedly too small and did not have a seat on July 8, 2015, the date that the walker was issued. However, construing Portee's claims broadly, at the very latest, Portee's claims related to his walker accrued (and the statute of limitations began to run) on July 14, 2015, the date that he alleges that he complained about his issues with the new walker to Jones. Before he could file suit, however, Portee was required to exhaust his administrative remedies available under the BOP's Inmate Grievance Program. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 205-07 (2007). When a claimant is required to exhaust such remedies before bringing suit, the limitations period is tolled while he or she does so, as long as such remedies are pursued diligently and in good faith. Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000). According to documents submitted by Defendants (and not contradicted by Portee), Portee's grievance related to his walker (later assigned Administrative Remedy ID# 831281) was accepted by the warden on August 6, 2015. [R. 49-2, Declaration of Robin Eads, ΒΆ 4, Att. B, SENTRY Report, Administrative Remedy Generalized Retrieval at p. 39, Page ID# 1538]. Although the limitations period began to run on July 14, 2015, it was tolled from August 6, 2015, through October 28, 2015, the date on which Portee's administrative remedy appeal was denied by the ...

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