United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
H. McKinley Jr., Senior Judge United States District Court
matter is before the Court on Motions for Summary Judgment
filed by two separate groups of Defendants. The first group
of Defendants consists of Crystal Vickery, Jarrett Backhurst,
Jeremy McLaughlin, Tracy Griffith, Bradley Ross, and Gary
Lutz. [DN 56]. The second group of Defendants consists of
Scott Gipson and Russell Nichols. [DN 57]. Fully briefed,
these matters are ripe for decision. For the following
reasons, Defendants' Motions for Summary Judgment are
Keith Kirkwood, is a former inmate at Hopkinsville County
Jail (“the Jail”). Mr. Kirkwood alleges that the
employees at the Jail-Crystal Vickery, Jarrett Backhurst,
Jeremy McLaughlin, Tracy Griffith, Bradley Ross, and Gary
Lutz-violated his Fourth and Fourteenth Amendment rights when
they placed him in a restraining chair, used pepper spray on
him, placed him in isolation, and denied him his medication
for schizophrenia while he was in custody from April 16,
2012, to June 22, 2012. [DN 13]. Mr. Kirkwood also alleges
that two Madisonville Police Officers, Russell Nichols and
Scott Gipson, violated his Fourth Amendment rights on April
16, 2012, when they searched his car, seized a firearm from
it, tased him, and arrested him. [DN 15].
Kirkwood originally filed a complaint in the United States
Court of Federal Claims, naming the United States as the sole
defendant. [DN 7]. However, the action was transferred to
this Court because the facts concerned events occurring in
Hopkins County, Kentucky. [DN 7-3]. Mr. Kirkwood's
original complaint was dismissed on preliminary review for
failing to state a claim [DN 12], but he was granted leave to
amend his complaint.
Kirkwood filed three separate amended complaints which the
Court considered as a single collective amended complaint.
[DN 33 at 1 n.1]. The Court reviewed the amended complaints
pursuant to 28 U.S.C. § 1915 and dismissed all claims
against three defendants-Joe Blue, the City of Madisonville,
and Hopkins County. [DN 16]. All remaining defendants then
moved to dismiss all claims against them arguing that Mr.
Kirkwood failed to bring the claims within the applicable
statute of limitations. [DN 24]. The Court found, however,
that Mr. Kirkwood had pled facts that plausibly showed he was
under a disability at the time his claims accrued. [DN 33 at
5]. In so finding, the Court noted that Mr. Kirkwood would
ultimately bear the burden of proving he was of unsound mind.
[Id. at 6].
Defendants now move for summary judgment advancing the same
argument made in the Motion to Dismiss-that Mr.
Kirkwood's claims are barred by the statute of
limitations. [DN 56-1 at 7-10, DN 57-1 at 5-9]. In his
Response to the Motion for Summary Judgment, Mr. Kirkwood
briefly explains that the statute of limitations in his case
did not begin to run until he became aware of his injury and
that his mental illness is not merely a part-time impairment.
[DN 62 at 3]. The Defendants filed their Replies arguing that
Mr. Kirkwood's failure to produce evidence to establish
he was of unsound mind is dispositive of the Motions and that
summary judgment is appropriate. [DN 63 at 2-3, DN 64 at
Standard of Review and Law
the Court may grant a motion for summary judgment, it must
find that there is no genuine dispute as to any material fact
and that the moving party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(a). The moving party bears the
initial burden of specifying the basis for its motion and
identifying the portion of the record that demonstrates the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party satisfies this burden, the non-moving party
thereafter must produce specific facts demonstrating a
genuine issue of fact for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986).
the moving party satisfies its burden of production, the
nonmovant “must-by deposition, answers to
interrogatories, affidavits, and admissions on file-show
specific facts that reveal a genuine issue for trial.”
Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th
Cir. 2014) (citing Celotex, 477 U.S. at 324).
“[N]ot every issue of fact or conflicting inference
presents a genuine issue of material fact which requires the
denial of a motion for summary judgment.” Street v.
J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.
1989). “The pivotal question is whether the party
bearing the burden of proof has presented a jury question as
to each element in the case.” Hartsel v. Keys,
87 F.3d 795, 799 (6th Cir. 1996). The evidence of the
non-moving party is to be believed, Anderson, 477
U.S. at 255, and all reasonable inferences that may be drawn
from the facts placed before the Court must be drawn in favor
of the opposing party. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986).
the fact that a plaintiff is pro se does not lessen his
obligations under Rule 56. “The liberal treatment of
pro se pleadings does not require the lenient treatment of
substantive law, and the liberal standards that apply at the
pleading stage do not apply after a case has progressed to
the summary judgment stage.” Johnson v.
Stewart, No. 08-1521, 2010 U.S. App. LEXIS 27051, at *7
(6th Cir. May 5, 2010) (internal citations omitted). The
Sixth Circuit has made clear that, when opposing summary
judgment, a party cannot rely on allegations or denials in
unsworn filings and that a party's “status as a pro
se litigant does not alter [this] duty on a summary judgment
motion.” Viergutz v. Lucent Techs., Inc., 375
Fed.Appx. 482, 485 (6th Cir. 2010); see also United
States v. Brown, 7 Fed.Appx. 353, 354 (6th Cir. 2001)
(affirming grant of summary judgment against a pro se
plaintiff because he “failed to present any evidence to
defeat the government's motion”). However,
statements in a verified complaint that are based on personal
knowledge may function as the equivalent of affidavit
statements for purposes of summary judgment. Weberg v.
Franks, 229 F.3d 514, 526 n.13 (6th Cir. 2000);
Williams v. Browman, 981 F.2d 901, 905 (6th Cir.
argued at the motion to dismiss stage, the Defendants
maintain that Mr. Kirkwood's claims should be dismissed
as they fall outside the applicable statute of limitations.
[DN 56 at 7- 10, DN 57 at 5-9]. The incidents underlying Mr.
Kirkwood's complaint occurred in 2012, but Mr. Kirkwood
did not bring the present action until 2017. [DN 13, DN 15].
“In Kentucky, § 1983 claims are governed by the
one-year statute of limitations contained in [KRS §]
413.140(1)(a)[.]” Gray v. Lexington-Fayette Urban
Cty. Gov., 2013 WL 3322609 (E.D. Ky. July 1, 2013)
(citing Collard v. Ky. Bd. of Nursing, 896 F.2d 179,
182 (6th Cir. 1990)). As such, Mr. Kirkwood's claims were
not brought within the one-year statute of limitations.
Mr. Kirkwood asserts that because he suffered from a
disability at the time his claims accrued, the statute of
limitations was tolled and his claims for violation of his
constitutional rights may proceed. [DN 62 at 3]. Mr. Kirkwood
relies on KRS § 413.170(1) which provides the tolling
rules for ...