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Kirkwood v. Vickery

United States District Court, W.D. Kentucky, Owensboro Division

June 24, 2019

KEITH EDWIN KIRKWOOD PLAINTIFF
v.
CRYSTAL VICKERY, JARRETT BACKHURST, JEREMY MCLAUGHLIN, TRACY GRIFFITH, BRADLEY ROSS, GARY LUTZ, SCOTT GIPSON, and RUSSELL NICHOLS DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley Jr., Senior Judge United States District Court

         This 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].[1] Fully briefed, these matters are ripe for decision. For the following reasons, Defendants' Motions for Summary Judgment are GRANTED.

         I. Background

         PLAINTIFF, 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].

         Mr. 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.

         Mr. 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].

         The 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 3-4].

         II. Standard of Review and Law

         Before 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).

         Assuming 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).

         However, 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. 1992).

         III. Discussion

         As was 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.

         However, 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 ...


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