Opinion
Case No. 3:10-0982.
March 3, 2011
REPORT AND RECOMMENDATION
Presently pending in this matter are three motions. The first (Docket Entry 25) is a motion for judgment on the pleadings by Defendant Norman Lewis. The second (Docket Entry 28) is a motion to dismiss by Defendants Correct Care Solutions and Melinda Stevens, and the third (Docket Entry 34) is a motion to amend the complaint by the Plaintiff to substitute Montgomery County for Montgomery County Jail.
For the reasons stated below, the Magistrate Judge recommends that the motions to dismiss (Docket Entries 25 and 28) be GRANTED, that the motion to amend (Docket Entry 34) be DENIED as futile, and that this case be dismissed with prejudice.
Background
The complaint was lodged with the Court on October 18, 2010 (Docket Entry 1). The Plaintiff was subsequently allowed to proceed in forma pauperis (Docket Entry 8) on November 3, 2010.
The complaint may be summarized as follows. On September 9, 2008, the Plaintiff was assaulted and for approximately 10 minutes he walked around bleeding in the middle of the pod at the Montgomery County Jail without being given assistance. He alleges that no officer was present in the guard tower to watch the pod and the jail is responsible for his injuries.
As a result of the assault he sustained a jaw broken in two places and was rushed to the hospital by ambulance due to blood loss. He underwent reconstructive surgery at Cumberland Surgical Arts and his jaw was wired shut for a 12-week period. He alleges that the physicians at Cumberland Surgical Arts directed that he be provided liquified food that included two Boost shakes with vitamins and minerals to insure his proper feeding and recovery. These procedures were supposed to be charted and sent to his physicians at Cumberland Surgical Arts by Melinda Stevens, the food director.
He alleges that Stevens failed to insure that he was given a liquified diet, that the jail did not have proper blending equipment, and that Stevens stated that he was in jail and they did not have to comply with orders from doctors outside their facility. He states that she changed the charts to show that, in fact, the jail was complying with his dietary requirements. Plaintiff alleges that this went on for a 12-week period.
At the end of his complaint he alleges that after this incident on September 9, 2008, he was supposed to be kept out of harm's way, but neither the (jail) staff or medical staff listened and he received further injury due to another fight. He alleges that he should not have been placed back in the general population in harm's way. No date was provided for the second incident.
Defendant Lewis alleges that this case should be dismissed because the complaint fails to state any facts showing misconduct by Defendant Lewis. His motion points out that other than being named in the caption and listed as a defendant, there are no factual allegations against Defendant Lewis. Defendant Lewis further contends that even if there were facts alleged against him that, pursuant to Rule 12(c), the case is subject to dismissal because the complaint was not filed within the one year statute of limitations concerning negligence or 1983 violations.
The Magistrate Judge would note that Defendant Lewis has combined an answer to the complaint with a motion and has failed to file a separate memorandum of law in support of the motion as required by Local Rule 7.01. In recommending the granting of this motion, the Magistrate Judge in no way condones the rather sloppy pleading by Defendant Lewis.
The Defendants Correct Care Solutions and Melinda Stevens filed a motion to dismiss supported by a proper memorandum of law (Docket Entries 28 and 29). In their memorandum they specifically point out the Tennessee Code Section and case law supporting the preposition that there is a one-year statute of limitations from the accrual date of claims under 42 U.S.C. 1983 to a filing of the lawsuit.
Legal Discussion
Taking the factual allegations in the Plaintiff's complaint as true and reading the complaint in the light most favorable to a pro se plaintiff, the Magistrate Judge believes that the Plaintiff's cause of action would have accrued at the latest by the end of 2008. The Plaintiff alleges that he suffered a broken jaw on September 9, 2008. He then underwent surgical intervention and was returned to the jail, where he states that his jaw was wired for 12 weeks. Even providing for a lengthy hospitalization period prior to his return to the Montgomery County Jail, the 12 weeks with a wired jaw would have expired by the end of December, 2008.The Plaintiff was specifically cautioned by the Magistrate Judge on December 23, 2010 (Docket Entry 30) that in responding to Defendant Stevens' motion to dismiss (Docket Entry 28) he should specifically address the statute of limitations issue. The Defendant's response to the statute of limitations argument is contained in Docket Entry 35. The Plaintiff states that he was in the custody of the Montgomery County Jail when his repeated requests for a civil complaint package were denied and that he seeks to present several issues stemming from the incident because the Defendants failed to properly attended to his medical needs. He further points out that he is still receiving medical
treatment for his broken jaw, which has required repeated transportation between Montgomery County, Tennessee and Nashville, Tennessee. Unfortunately, the Plaintiff does not give even approximate dates as to when he was transferred from the Montgomery County Jail, or provide any information from which the Magistrate Judge can conclude that somehow the statute of limitations should be tolled in this matter. He does allege that he filed a number of grievances about his treatment. There is simply no showing he did not have access to paper to file a simple complaint with the court.
A fair reading of the complaint shows that the Plaintiff would have known that his 1983 cause of action accrued at the conclusion of the 12 weeks that his jaw was wired shut yet he waited until October 14, 2010, to file his complaint.
Using the letter box rule, the Magistrate Judge will give the Plaintiff credit for filing the complaint on the date that he signed it at the prison facility.
The Supreme Court in Wallace v. Kato, 549 U.S. 384 (2007), stated at page 388, that a cause of action under 1983 accrues when the plaintiff can file suit and obtain relief. In this case there can be no dispute that the Plaintiff's cause of action against these Defendants accrued at the latest upon the conclusion of the 12 week period in which his jaw was wired shut.
The Sixth Circuit pointed out that 1983 cases filed in Tennessee have a one-year statute of limitations and the cause of action accrues under federal law when the plaintiff knows, or has reason to know, that the act providing the basis of his or her injury has occurred. Howard v. REA, 111 F. App. 419,421 (6th Cir. 2004). The Magistrate Judge has considered the possibility of tolling, however this complaint was filed at least nine months past the one-year limit. The Plaintiff has provided nothing to show that he could not have filed this suit at some point within the applicable statute of limitations. Even if he did not have forms in the jail, he made no allegations that he did not have access to paper and pencil and the ability to send a pleading to the Court. He was able to file grievances about the matter. While he may have been moved about and may have received additional medical treatment there is insufficient justification for a nine-month delay in filing this action.
Inasmuch as this is an unpublished opinion, the Magistrate Judge is attaching a copy to this report and recommendation for the benefit of the Plaintiff.
Plaintiff has come forward with no evidence or even a proposed amended pleading to show that his cause of action is within the statute of limitations or that there are adequate grounds for equitable tolling. See, e.g., Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988) (setting forth the requirements for equitable tolling). The Plaintiff could have moved to amend his complaint to allege specific dates in response to these motions, but he did not.
Plaintiff has also failed to add any allegations concerning Defendant Lewis. Plaintiff could have also moved to amend his complaint to allege some facts concerning misconduct by Lewis. However, the Plaintiff's only motion to amend the complaint (Docket Entry 34) was to allege Montgomery County instead of Montgomery County Jail (Docket Entry 34).
Even if the Magistrate Judge allowed an amendment to the complaint to name Montgomery County, rather than Montgomery County Jail, such an amendment would be futile as the claims against the jail would suffer from the same statute of limitations deficiencies. While Rule 15 provides that motions to amend should be freely granted in the interest of justice, the case law is quite clear that an amendment need not be allowed if it would be futile. Kottmyer v. Maas, 436 F.3d 684, 691-2 (6th Cir. 2006). The Defendant Montgomery County Jail has not been served in this matter. However, the complaint as to the Jail suffers from the same deficiency concerning the statute of limitations as presented by the other Defendants. Since it does not state a cause of action against the jail, the Magistrate Judge has included a recommendation to dismiss Montgomery County Jail as well under 28 U.S.C 1915(A)(b).
Recommendation
For the reasons stated above the Magistrate Judge recommends that the motions to dismiss (Docket Entries 25 and 28) by the Defendants Lewis, Stevens, and Correct Care Solutions be GRANTED, that the motion to amend to add or to substitute Montgomery County for the Montgomery County Jail (Docket Entry 34) be DENIED as futile, that the claims against Montgomery County Jail be DISMISSED as failing to state a cause of action, and the case be DISMISSED with prejudice.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has 14 days, from receipt 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 14 days, from receipt of any objections filed in this Report, in which to file any responses to said objections. Failure to file specific objections within 14 days of receipt of this Report and Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S. Ct. 466, 88 L.Ed.2d 435 (1985), Reh'g denied, 474 U.S. 1111 (1986).
ENTERED this 2nd day of March, 2011.