United States District Court, W.D. Kentucky, Louisville Division
N. STIVERS, CHIEF JUDGE
Ahmed Hamdan Alkhub, pro se and in forma
pauperis, brought this action. This matter is before the
Court for screening pursuant to 28 U.S.C. § 1915(e)(2)
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 action
will be dismissed.
STATEMENT OF CLAIMS
names as Defendants the Louisville County Jail; Louisville
County Sheriff John Aubrey; the U.S. Marshal's
Department; the Lucas County Jail, in Lucas County, Ohio;
Lucas County Sheriff John Tharp; and several John Doe
Defendants, some of which are located in Louisville and some
in Ohio. He states that he brings this action pursuant to 42
U.S.C. § 1983, the Federal Tort Claims Act (FTCA), and
Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971). He states that he was formerly a prisoner
housed at the Louisville County Jail for approximately one
week in November 1998. He alleges that when he arrived he was
checked by the medical staff and tested negative for
tuberculosis. He states that he was later transported by the
U.S. Marshal's Service to the Lucas County Jail in
Toledo, Ohio. He states that upon his arrival there he tested
positive for tuberculosis and was provided treatment.
Court must review the instant action. See 28 U.S.C.
§ 1915(e)(2); McGore v. Wrigglesworth, 114 F.3d
at 604-05. Upon review, this Court must dismiss a case at any
time if the Court determines that the 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. 28 U.S.C.
Court first turns to the question of whether Plaintiff has
properly joined claims against Defendants located in Ohio in
this action. Under Federal Rule of Civil Procedure 20(a)(2),
persons may be joined in one action as defendants if:
“(A) any right to relief is asserted against them
jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or
fact common to all defendants will arise in the
action.” Fed.R.Civ.P. 20(a)(2). “[P]laintiffs . .
. do not have free reign to join multiple claims and
defendants in any manner they choose.” Proctor v.
Applegate, 661 F.Supp.2d 743, 780 (E.D. Mich. 2009).
“‘[T]he policy of liberal application of Rule 20
is not a license to join unrelated claims and defendants in
one lawsuit.'” Id. (quoting Boretsky
v. Corzine, No. 08-2265 (GEB), 2008 WL 2512916, at *4
(D.N.J. June 23, 2008)).
of the Federal Rules of Civil Procedure gives the Court
“discretion to . . . add parties, drop (dismiss)
parties, and . . . sever [a]ny claim against a party.”
Jones v. Pancake, Nos. 3:06CV-P188-H,
3:07CV00634-JGH, 0:07-cv-00111-HRW, 2007 WL 4104568, at *3
(W.D. Ky. Nov. 14, 2007) (internal quotation marks and
citation omitted). Rule 21 has been interpreted as allowing
the Court to dismiss a misjoined party without prejudice.
See Deleon v. Hamilton Cty. Sheriff's Dep't,
No. 1:12-CV-68, 2012 WL 3116280, at *3 (E.D. Tenn. July 31,
2012); see also Letherer v. Alger Grp., L.L.C., 328
F.3d 262, 266-68 (6th Cir. 2003) (affirming dropping of
misjoined party and dismissing claims against that party),
recognized as overruled on other grounds in Blackburn v.
Oaktree Capital Mgmt., LLC, 511 F.3d 633, 636 (6th Cir.
the allegations against the Ohio Defendants are factually
distinct from Plaintiff's allegations involving the
Kentucky Defendants. Moreover, Plaintiff's claims against
the Ohio Defendants will involve application of Ohio's
statute of limitations. The Court finds that Plaintiff has
improperly joined the Ohio Defendants in this action and that
the appropriate and most efficient manner in which to remedy
the misjoinder is to dismiss the claims against each of the
Ohio persons and entities, i.e., Lucas County Jail,
Lucas County Sheriff Tharp, and the Ohio John Doe Defendants,
Court now turns to Plaintiff's claims against the
Kentucky Defendants. As set forth below, the Court finds that
Plaintiff's claims against the Kentucky Defendants are
claims asserted under § 1983 and
Bivens are governed by the state personal injury
statute of limitations. Fox v. DeSoto, 489 F.3d 227,
233 (6th Cir. 2007); Zappone v. United States, 870
F.3d 551, 559 (6th Cir. 2017) (“Bivens claims,
like § 1983 claims, ordinarily borrow the
personal-injury statute of limitations from the state in
which the claim arose.”). Personal injury actions in
Kentucky “shall be commenced within one (1) year after
the cause of action accrued.” Ky. Rev. Stat. §
413.140(1); Collard v. Ky. Bd. of Nursing, 896 F.2d
179, 182 (6th Cir. 1990). Although the statute of limitations
is an affirmative defense, a court may raise the issue
sua sponte if the defense is obvious from the face
of the complaint. Fields v. Campbell, 39 Fed.Appx.
221, 223 (6th Cir. 2002).
appears from the allegations in Plaintiff's complaint
that Plaintiff knew of his diagnosis of tuberculosis when he
tested positive at his arrival at the Lucas County Jail.
Though the applicable statute of limitations is determined by
state law, the date on which the statute of limitations
begins to run is determined by federal law. Eidson v.
Tenn. Dep't of Children's Servs., 510 F.3d 631,
635 (2007). “[I]t is the standard rule that accrual
occurs when the plaintiff has a complete and present cause of
action . . . that is, when the plaintiff can file suit and
obtain relief.” Wallace v. Kato, 549 U.S. 384,
388 (2007) (internal quotation marks, brackets, and citations
omitted). Here, Plaintiff's claim accrued in 1998. This
§ 1983 and Bivens action was filed over
nineteen years after the statute of limitations had run.
FTCA allows the United States to be sued “in the same
manner and to the same extent as a private individual under
like circumstances” for a tort claim arising from the
acts of federal employees acting within the scope of their
employment. 28 U.S.C. § 2674; see also
Young v. United States, 71 F.3d 1238, 1241 (6th Cir.
1995). The FTCA contains its own statute of limitations,
A tort claim against the United States shall be forever
barred unless it is presented in writing to the appropriate
Federal agency within two years after such claim accrues or
unless action is begun within six months after the date of
mailing, by certified or registered mail, of notice ...