Petition for Writ of Certiorari — Danny R. Meeks, Petitioner v. Tennessee Department of Correction, et al.

NOT RE

FOR FULL-TEXT PUBLICATION

FILED

May 29, 2018

No. 17-6292

DEBORAH S. HUNT, Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DANNY RAY MEEKS,

Plaintiff-Appellant,

V.

TENNESSEE DEPARTMENT OF

CORRECTION; CORRECTION CORPORATION

OF AMERICA,

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF

TENNESSEE

Defendants-Appellees.

ORDER

Before: GUY, COOK, and DONALD, Circuit Judges.

Danny Ray Meeks, a pro se Tennessee prisoner, appeals the district court's judgment

granting Correction Corporation of America's ("CCA") and the Tennessee Department of

Correction's ("TDOC") respective Federal Rule of Civil Procedure 12(b)(6) motions to dismiss,

as well as CCA's motion for summary judgment. This case has been referred to a panel of the

court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R.

App. P. 34(a).

In July 2014, Meeks filed a lawsuit against CCA and the TDOC alleging various claims

under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.; Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; the Rehabilitation Act of 1973, 29 U.S.C.

§ 701, et seq.; and 42 U.S.C. §§ 1981 and 1983. Meeks subsequently filed an amended

complaint adding several CCA employees as defendants. The district court dismissed Meeks's

complaint sua sponte pursuant to 28 U.S.C. § 1915(e)(2), concluding that Meeks had failed to

No. 17-6292

-2state a claim upon which relief can be granted. Meeks appealed, and we vacated the district

court's judgment in part after determining that Meeks had plausibly alleged prima facie elements

of ADA retaliation by asserting that the named defendants "took adverse action against him for

filing documents in his then-ongoing lawsuit alleging ADA and § 1983 violations by allegedly

transferring him to a non-ADA compliant prison facility on October 24, 2012, destroying his

property on June 12, 2013, and sanctioning his assault by a prison gang on June 29, 2013."

Meeks v. Tenn. Dep 't of Corr., No. 14-6300 (6th Cir. Jan. 6, 2016) (order). We remanded for

further proceedings regarding Meeks's claims of ADA retaliation against the TDOC and CCA,

but affirmed the district court's judgment in all other respects.

Upon remand, CCA filed a Rule 12(b)(6) motion to partially dismiss Meeks's ADA

retaliation claims, to which Meeks did not respond. The TDOC filed a separate Rule 12(b)(6)

motion to dismiss Meeks's ADA retaliation claims. Both motions argued that Meeks's ADA

retaliation claims were barred by the applicable statute of limitations. Meeks responded to the

TDOC's motion to dismiss, asserting that his ADA retaliation claims were timely under the

"continuing violations doctrine." The TDOC thereafter filed a reply, arguing that the alleged

October 2012 transfer, June 2013 property destruction, and June 2013 assault were discrete

events that did not constitute continuing violations. The district court concluded that Meeks's

ADA retaliation claims were barred by the statute of limitations and granted both motions to

dismiss.

While its Rule 12(b)(6) motion was still pending, CCA also filed a motion for summary

judgment on Meeks's two remaining ADA retaliation claims that CCA officials (1) placed him in

administrative segregation in August 2013 as punishment for seeking protections under the ADA

and (2) sanctioned an assault on him in March 2014. CCA argued within its motion that it was

entitled to judgment as a matter of law because (1) Meeks's claims were barred by the applicable

statute of limitations, (2) Meeks failed to exhaust his administrative remedies, and (3) Meeks did

not suffer an adverse action and the defendants did not act with a retaliatory motive. Meeks did

not file a response. The magistrate judge recommended that the district court grant CCA's

motion for summary judgment because Meeks failed to (1) exhaust his administrative remedies

No. 17-6292

-3properly and (2) establish the requisite elements of his retaliation claims. The district court

adopted the magistrate judge's report and recommendation over Meeks's objections, thereby

granting CCA's motion for summary judgment and dismissing Meeks's remaining retaliation

claims under the ADA.

On appeal, Meeks challenges the district court's bases for granting CCA's and the

TDOC's Rule 12(b)(6) motions, as well as CCA's motion for summary judgment.

We review de novo the district court's dismissal of a complaint under Rule 12(b)(6). See

Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 481 (6th Cir. 2009). A complaint is

subject to dismissal under Rule 12(b)(6) if it fails to plead facts that plausibly state a claim for

relief. See Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012). When reviewing a

Rule 12(b)(6) motion, we must confine our analysis to the pleadings and accept all well-pleaded

allegations as true. See Tackett, 561 F.3d at 481.

The district court properly determined that Meeks's ADA retaliation claims at issue in

those motions were time-barred. The ADA itself does not contain a specific statute of

limitations. Thus, federal courts are required to adopt the statute of limitations of the state cause

of action most closely analogous to an ADA claim. See Wilson v. Garcia, 471 U.S. 261, 266-68

(1985). For ADA claims arising in Tennessee, we apply the one-year statute of limitations

which governs § 1983 claims. See Williams v. Trevecca Nazarene Coil., No. 97-5705, 1998 WL

553029, at *1 n.2 (6th Cir. Aug. 17, 1998) (unpublished opinion). According to Meeks's

complaint, the relevant events occurred on October 24, 2012 (transferred to a non-ADA

compliant facility), June 12, 2013 (seizing and destroying his personal property), and June 29,

2013 (orchestrating a physical attack on him). Meeks, however, did not file his complaint in the

present matter until July 2014, more than one year after each aforementioned incident had

allegedly occurred. The district court also correctly rejected Meeks's "continuing violations"

argument. Aside from conclusory assertions, nothing within Meeks's complaint can be

construed as a plausible continuing violation of his rights that occurred within any applicable

limitations period. Under these circumstances, the district court properly granted CCA's and the

TDOC's Rule 12(b)(6) motions to dismiss Meeks's ADA retaliation claims.

No. 17-6292

-4Meeks also challenges the district court's grant of summary judgment in favor of CCA.

We review a district court's grant of summary judgment de novo. Huckaby v. Priest, 636 F.3d

211, 216 (6th Cir. 2011). Summary judgment is appropriate when "the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law." Fed. R. Civ. P. 56(a). In resolving a summary judgment motion, we view the evidence in

the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

Under the Prison Litigation Reform Act, prisoners must properly exhaust their available

administrative remedies before bringing an action challenging prison conditions. 42 U.S.C.

§ 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also Jones v. Smith, 266 F.3d 399,

400 (6th Cir. 2001) (applying the Prison Litigation Reform Act exhaustion requirements to a

prisoner's ADA claims). "Proper exhaustion demands compliance with an agency's deadlines

and other critical procedural rules because no adjudicative system can function effectively

without imposing some orderly structure on the course of its proceedings." Woodford, 548 U.S.

at 90-91.

Because the district court's exhaustion ruling arose on summary judgment, only genuine

issues of material fact will preclude summary judgment. See Northup Props., Inc. v. Chesapeake

Appalachia, LLC, 567 F.3d 767, 771 (6th Cir. 2009). Meeks did not respond to CCA's motion

for summary judgment, and thus did not "set forth specific facts showing that there is a genuine

issue for trial" as to exhaustion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)

(quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)). The summary

judgment record established that Meeks filed four grievances while incarcerated at a CCAoperated facility. Meeks's first grievance was filed in June 2013 and concerned the alleged

seizure and destruction of his personal property. However, as discussed above, Meeks's ADA

retaliation claim concerning the destruction of his personal property is barred by Tennessee's

one-year statute of limitations. Meeks's second grievance was filed in August 2013 and related

to his claim that he was placed in protective custody as punishment for seeking protections under

the ADA. However, this grievance was deemed to have violated the TDOC's policy because

No. 17-6292

-5-

Meeks filed it more than seven days after the alleged incident. This determination was upheld by

the grievance chairperson, the committee, the warden, and the TDOC's deputy commissioner of

operations. Meeks's final two grievances concerned incidents unrelated to the present lawsuit.

Thus, because CCA established that Meeks failed to exhaust his administrative remedies

properly concerning his ADA retaliation claims, the district court properly granted CCA's

motion for summary judgment.

Accordingly, we AFFIRM the district court's judgment.

ENTERED BY ORDER OF THE COURT

A 5~~Uw

Deborah S. Hunt, Clerk

Case: 17-6292 Document: 30-1 Filed: 07/10/2018 Page: 1

No. 17-6292

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Jul 10, 2018

DEBORAH S. HUNT, Clerk

DANNY RAY MEEKS,

Plaintiff-Appellant,

V.

ORDER

TENNESSEE DEPARTMENT OF CORRECTION; CORRECTION

CORPORATION OF AMERICA,

Defendants-Appellees.

BEFORE: GUY, COOK, and DONALD, Circuit Judges.

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision of the case. The petition then was circulated to the full

court. No judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

AJdZi

Deborah S. Hunt, Clerk

(1 of 2)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

COLUMBIA DIVISION

DANNY RAY MEEKS,

Plaintiff,

No. 1: 14-cv-00092

Senior Judge Haynes

V.

TENNESSEE DEPARTMENT OF

CORRECTION, et al.,

Defendants.

ORDER

Before the Court is the Defendant Corrections Corporation of America ("CCA")'s motion

n

for partial dismissal (Docket Entry No. 38); the Defendant Tennessee Department of Correctio

("TDOC")'s motion to dismiss (Docket Entry No. 40); the Defendant CCA's motion for summary

judgment (Docket EntryNo. 59); and the Magistrate Judge's Report and Recommendation (Docket

EntryNo. 69) addressing the Defendant TDOC's motion to dismiss (Docket EntryNo. 40). Plaintiff

requested and was granted an extension of time to file a response to the Defendant CCA' s motion

for summary judgment. (Docket Entry Nos. 67 and 69). The Report and Recommendation (Docket

EntiyNo. 69) is SET ASIDE, and the Court addresses the Defendants' motions to dismiss (Docket

Entry Nos. 38 and 40) de novo.

In its motion, Defendant IDOC contends that Plaintiffs retaliation claims under the

Americans with Disabilities Act ("ADA") are time-barred under the applicable one-year statute

limitations because the alleged retaliatory acts occurred more than one year after this action

of

was

filed. (Docket Entry No, 41 at 1-2). In its motion, Defendant CCA contends that the two alleged

retaliatory acts—destruction of Plaintiff's personal property and a sanctioned assault of Plaintiff

Case 114cv-00092 Document 70 Filed 01/11/17 Page 1 of 3 PageD #: 370

by

other inmates—are time barred under the applicable one-year statute of limitations. (Docket Entry

No. 39 at 3-4).

In his response to Defendant TDOC's motion to dismiss, Plaintiff argues, in sum: (1) that the

Defendants' acts constitute continuous acts; and (2) that under the continuous wrong doctrine his

claims are timely. (Docket Entry No. 46, Plaintiff's Response to Defendant TDOC's Motion to

Dismiss, at 2-3; see also Docket Entry No. 1, Complaint, at ¶ 29).

Plaintiff filed this action on July 21, 2014. (Docket Entry No. 1, Complaint). Plaintiff's ADA

claims for retaliatory acts are: TDOC's transfer of Plaintiff on October 24, 2012; the Defendants'

destruction of his JVC radio/tape/CD player on June 12, 2013; and a sanctioned attack by inmates

on Plaintiff on June 29, 2013. Id. at 11 32-34, 42, 44-45. The Sixth Circuit found these ADA claims

to be actionable. (Docket Entry No. 18, Sixth Circuit Opinion, at *5). Plaintiff also asserts ADA

retaliation claims for his placement in administrative segregation on August 9, 2013 and another

inmate attack on March 13, 2014. (Docket Entry No. 1, Complaint, at IT 54-58, 74-76).

The ADA does not contain a statute of limitations and in such instances, the Court is to apply

the appropriate state statute of limitations. McCormick v. Miami Univ., 693 F.3d 654,662(6th Cir.

2012). The Court deems Tenn. Code Ann. § 28-3-104, the one-year statute of limitations for federal

civil rights actions, to be the "appropriate" state statute of limitations, as Plaintiff's retaliation claims

are based on federal law prohibiting discrimination. Wright v. Tennessee, 628 F.2d 949, 951 (6th

Cir. 1980); see also Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843 (6th Cir. 2015).

As to Plaintiff's retaliation claims for the October 24, 2012 transfer, the June 12, 2103

property destruction, and the June 29, 2013 inmate assault, these claims are time-barred under Tenn.

Code Ann. § 28-3-104. As to the continuing-wrong doctrine, the Sixth Circuit has held in § 1983

2

Case 1:14-cv-00092 Document 70 Fed 01/11/17 Page 2 of 3 PagefD #: 371

retaliation transfer claims that the Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)

holding on untimely claims applies. Thus, even if these untimely claims "are sufficiently related to

those occurring within the limitations period," Sharpe V. Cureton, 319 F. 3d 259,268 (6th Cir. 2003),

those claims remain time barred. Assuming Plaintiff's claims for the August 9, 2013 administrative

segregation and the March 3, 2014 assault are related claims, under Sharpe, Plaintiff's claims against

Defendants TDOC and CCA for the October 24, 2012 transfer, the June 12, 2013 property

destruction, and the June 29, 2013 inmate assault remain time barred.

As to Plaintiff's reference to his filing of his prior action concerning his October 24, 2012

transfer claim timely in that action, Meeks v. Schofield, 3: 10-cv545, the res judicata doctrine bars

this claim. Allen vMcCurry. 449 U.S. 90,94(1980). That claim was adjudicated on the merits as

a Section 1983 claim, and the Sixth Circuit held the transfer was not proven to be an adverse action.

See Meeks v. Schofield, 625 F.App'x 697, 702 (61h Cir. 2015).

For these reasons, Defendant TDOC's motion to dismiss (Docket Entry No. 40) is

GRANTED and Defendant CCA's motion for partial dismissal (Docket Entry No. 38) is

GRANTED. Plaintiff's claims for the October 24, 2012 transfer, the June 12, 2103 property

destruction, and the June 29, 2013 inmate assault are DISMISSED with prejudice.

It is so ORDERED.

ENTERED this the

/

day of January, 2017.

J

JR.

WILLIAM J.

Senior United States District Judge

Case 1:14-cv-00092 Document 70 Filed 01/11/17 Page 3 of 3 Pagel #: 372

1NTffE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

COLUMBIA DIVISION

DANNY RAY MEEKS,

Plaintiff,

V.

TENNESSEE DEPARTMENT OF

CORRECTION, et al.,

Defendants.

)

)

)

)

)

)

)

)

)

Case No. 1:14-cv-00092

Judge Haynes / Frensley

REPORT AND RECOMMENDATION

This matter is before the Court upon Defendant Tennessee Department of Correction's

("TDOC") Motion to Dismiss filed pursuant to Fed. R. Civ. P. 12(b)(1). Docket No. 40. As

grounds for its Motion, TDOC argues that Plaintiffs claims against it are barred by the

applicable one-year statute of limitations. Id. TDOC has filed a supporting Memorandum of

Law, asserting that because the allegations of which Plaintiff complains occurred in October

2012 and June 2013, and Plaintiff did not file his Complaint in this action until July 2014,

Plaintiffs claims arose more than one year prior to the date he signed and filed his Complaint

and are therefore time-barred. Docket No. 41.

Plaintiff has filed a Response to TDOC's Motion, arguing first, that his claims are not

barred under the "continuing wrong theory," and second, that his Complaint was timely-filed

because he filed it on October 23, 2012, "prior to his illegal transfer by the TDOC." Docket No.

46, citing "CIVIL DOCKET NO. 3: 12-cv-00545, D.E. # 52, 10/23/2012."

TDOC has filed a Reply to Plaintiffs Response, asserting that "the continuing wrong

Case 1:14cv-00092 Document 69 Filed 12/28/16 Page 1 of 5 PagelD #-: 365

theory is not applicable" because the Supreme Court has held that, when redress is sought for

discrete acts of discrimination or retaliation, the continuing violation doctrine may not be

invoked to allow recovery for acts that occurred outside the filing period. Docket No. 47, citing

National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 2061, 2070-71 (2002). TDOC argues

that, pursuant to Supreme Court precedent, "Each discrete discriminatory act starts a new clock

for filing charges alleging that act." Id., quoting Id. at 2072. TDOC contends that the Sixth

Circuit, in Sharpe v. Cureton, 319 F.3d 259, 267-68 (6th CIT. 2003), extended the Supreme

Court's holding to § 1983 retaliatory transfer claims, stating, "Accordingly, Morgan overturns

prior Sixth Circuit law addressing serial violations, i.e., plaintiffs are now precluded from

establishing a continuing violation exception by proof that the alleged acts of discrimination [or

retaliation] occurring prior to the limitations period are sufficiently related to those occurring

within the limitations period." Id., quoting Id. TDOC reiterates its assertions that the continuing

violation theory is inapplicable to Plaintiff's claims, and that the alleged retaliatory transfer to a

non-ADA compliant prison facility on October 24, 2012, the alleged destruction of property on

June 12, 2013, and the alleged sanctioning of his assault by a prison gang on June 29, 2013 are

distinct, discrete events which occurred more than one year prior to the signing and filing of

Plaintiff's July 2014 Complaint such that Plaintiff's claims are time-barred. Id.

TDOC, in its Reply, also argues that, to the extent that Plaintiff argues that his transfer to

South Central Correctional Facility was a "continuing wrong" during the period he was

incarcerated there, Plaintiff is mistaken because, "A continuing wrong is established by

continuing tortious acts, not by continual harmful effects from an original, completed act." Id.,

quoting Village of Mi/ford v. K-H Holding Corp., 390 F. 3d 926, 933 (6th Cir. 2004); citing also,

2

Case 1:14-cv-00092 Document 69 Filed 12/28/16 Page 2 of 5 PagelD #: 366

Cornelius v. Michigan Attorney Grievance Commission, 510 Fed. Appx. 404, 406 (6th Cir.

2013).

Finally, TDOC, in its Reply, notes that Plaintiff's reference to an October 23, 2012 filing

refers to a complaint he filed in a different case entirely, which is completely irrelevant to the

instant action. Id., comparing Case No. 3:12-cv-00545 with Case No. 1:14-cv-00092. TDOC

maintains that Plaintiff's October 23, 2012 filing of a complaint in a different action has no

bearing on the events alleged in the instant action nor does it effect the relevant statute of

limitations in this case.

On July 21, 2014, Plaintiff, a TDOC inmate, filed this action pursuant to 42 U.S.C. §

1983 and the Americans With Disabilities Act ("ADA"). Docket No. 1. This Court reviewed

Plaintiff's Complaint pursuant to 28 U.S.C. § 1915(e)(2) and dismissed it sua sponte for failure

to state a claim. See Docket Nos. 4, 5. Plaintiff appealed to the Sixth Circuit, which affirmed the

dismissal except as to Plaintiff's ADA retaliation claims against TDOC and Corrections

Corporation of America ("CCA"). Docket No. 18. Specifically, the Sixth Circuit found that

Plaintiff "plausibly alleged the prima facie elements of ADA retaliation by asserting that the

TDOC took adverse action against him for filing documents in his then-ongoing lawsuit alleging

ADA and § 1983 violations by allegedly transferring him to a non-ADA compliant prison facility

on October 24, 2012, destroying his property on June 12, 2013, and sanctioning his assault by a

prison gang on June 29, 2013." Id.

As noted, Plaintiff filed his Complaint in this action on July 21, 2014.' Docket No. 1. In

'Although Plaintiff argues in his Response that he timely-filed his Complaint on October

23, 2012 and he cites Case No. 3:12-cv-00545 as support for that proposition, the complaint filed

in Case No. 3:12-cv-00545 was actually filed on April 17, 2012 (some six months before the

Case 1:14cv00092 Document 69 Filed 12/28/16 Page 3 of 5 PageD #: 367

his Complaint, Plaintiff avers that TDOC retaliated against him for filing documents in his thenongoing ADA and § 1983 action. Id. Specifically, Plaintiff avers that TDOC transferred him to

a non-ADA compliant prison facility on October 24, 2012, destroyed his property on June 12,

2013, and sanctioned his assault by prison gang on June 29, 2013. Id.

Although there is no explicit statute of limitations under the ADA, courts look to the

statute of limitations set forth in the most analogous state cause of action, which, in Tennessee, is

a personal injury action. McCormick v. Miami Univ., 693 F.3d 654, 663 (6th Cir. 2012). Tenn.

Code Ann. § 28-3-104(a) sets forth a one-year statute of limitations period for personal injury

actions in Tennessee. Thus, Plaintiff's ADA retaliation claims are subject to a one-year statute of

limitations.

As can be seen, the allegedly retaliatory actions of which Plaintiff complains occurred

more than one year prior to the filing of the Complaint in this matter. Moreover, the actions of

which Plaintiff complains (namely, the transfer to a non-ADA compliant prison facility, the

destruction of his property, and the sanctioning of an assault on him by a prison gang) are three

separate and distinct events, each having its own one-year statute of limitations. Because

Plaintiff filed his Complaint in this action more than one year after the alleged events occurred,

they are time-barred. Accordingly, the undersigned recommends that TDOC's Motion to

Dismiss (Docket No. 41) be GRANTED and that TDOC be TERMINATED as a Defendant in

this action.

Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)

allegedly retaliatory transfer of which Plaintiff complains), as Miscellaneous Case No. 3:12-me35. See CMECF report for Case No. 3: 12-cv-00545. That case was converted to a Civil Case on

May 29, 2012, and was terminated on March 31, 2014. Id.

Case 1:I4-cv-00092 Document 69 Filed 12/28/16 Page 4 of 5 PagelD #: 368

days after service of this Report and Recommendation in which to file any written objections to

this Recommendation with the District Court. Any party opposing said objections shall have

fourteen (14) days after service of any objections filed to this Report in which to file any

response to said objections. Failure to file specific objections within fourteen (14) days of

service of this Report and Recommendation can constitute a waiver of further appeal of this

Recommendation. See Thomas v. Am, 474 U.S. 140,106 5.Ct. 466, 88 L. Ed. 2d 435 (1985),

reh'g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.72.

/5

JRY'S. FRENSLEY

United States Magistrate Judge

61

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99S