Edwards v. Abbett et al
OPINION AND ORDER: It is ORDERED that plaintiff Marcus Edwards's motion for leave to file his first amended complaint (doc. no. 24 ) is treated as a motion for permission to file his amended complaint two days late, and granted. It is further O RDERED that plaintiff Edwards's motion for an order to show cause (doc. no. 27 ), which is actually not a motion but instead his response to the court's order to show cause, is denied as improperly docketed. Signed by Honorable Judge Myron H. Thompson on 6/9/2016. (kh, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
SHERIFF JIMMY ABBETT
(in his individual and
official capacities as
Sheriff of Tallapoosa
County, Alabama); et al.,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Marcus Edwards was incarcerated in the
Tallapoosa County Jail in Dadeville, Alabama from June
7 to November 27, 2011.
He raises a number of Eighth
(pursuant to 42 U.S.C. § 1983) and
claims under the Americans with Disabilities Act (ADA)
and § 504 of the Rehabilitation Act.
that, throughout the period of his incarceration, he
treatment; prevented from participating in programs and
receiving services due to his medical and mental-health
deprivation of access to showers and outdoor areas. 1
Finally, he claims that these harms resulted from a
adequately at the jail.
Edwards is suing Tallapoosa
County, the municipality that
operates the jail, as
well as (in their official and individual capacities)
1. The factual allegations made in the complaint
are quite serious. Specifically, Edwards alleges that
he was denied necessary medication to treat diagnosed
mental illnesses as well as pain from a recent femur
fracture; that a medical device necessary to treat his
obstructive sleep apnea was damaged by chief jail nurse
Cathy Dubose and not repaired and that his sleep was
disrupted as a result; that he was housed in an
overcrowded and roach-infested cell with no running
water and denied showers for days at a time; and that
he was discriminated against based on his mental and
physical disabilities when the defendants denied him
transportation to receive both physical therapy and
Jennings, and chief jail nurse Cathy Dubose. 2
§ 1331 (federal question) and § 1343 (civil rights).
alternative, for a more definite statement, and the
court denied the motion to dismiss but granted, without
Edwards to file an amended complaint within 14 days.
He did file an amended complaint, albeit two days past
the deadline, along with a motion styled as seeking
leave to amend
(without explanation for the delay).
The court then ordered the parties to brief why the
consideration of the parties’ responses and for the
reasons that follow, Edwards’s motion will be granted.
2. Edwards alleges that Abbett and Jennings not
only supervised the operation of the jail and the
provision of medical care to its prisoners but had
knowledge of his condition and the treatment he was or
was not receiving, because he and his family members
repeatedly communicated this information to them.
Edwards alleges that Dubose was directly responsible
for providing his care and therefore had personal
knowledge of his condition.
Although Edwards states in his motion that he is
seeking leave to amend, he has actually already been
afforded that leave, in the court’s order granting the
Therefore, his motion is more properly considered as a
compliance with that order.
Hence, the relevant rule
is not Federal Rule of Civil Procedure 15 (governing
amended pleadings) but rather Rule 12(e), which states
that, when a district court’s order for a more definite
statement “is not obeyed within 14 days ..., the court
may strike the pleading or issue any other appropriate
Withdrawal of the already-given leave to amend
would be an exceedingly drastic response to Edwards’s
prejudiced the defendants. 3
Edwards will therefore be
granted the extension his motion effectively requests. 4
3. The defendants suggest that Edwards engaged in
dilatory tactics when he represented to the court, in
his response to the defendants’ motion, that he
“anticipated” that he would file an amended complaint
within two weeks, and then delayed in doing so until
opposition to Edwards’ motion focus not on the minor
delay in filing but rather on their contention that his
complaint only slightly--is futile.
They argue, as
they did in their initial motion to dismiss, that all
Because this argument is virtually the
the court had ruled on the motion.
Pl.’s Resp. to
Defs.’ Mot. to Dismiss (doc. no. 22) at 2.
Edwards’s counsel is cautioned that he must, in
regarding the submission of documents to the court.
repercussions both for his clients and for his law
practice. That said, the delay in this instance was in
fact occasioned in large part by the court: the
defendants’ motion had been filed in early January
2014, Edwards’s response was filed in the middle of
February 2014, and the court did not rule on the motion
until the end of March 2015. Even if Edwards’s amended
complaint had been filed promptly, the case would have
been on hold until the court rendered its decision on
4. Counsel for Edwards is reminded that the
federal rules require careful compliance with all
The court will not look kindly on any
further failures to comply timely with its orders in
sole focus of the defendants’ briefing, and because it
is likely to be raised again in a renewed motion to
dismiss, the court will address it briefly here.
“‘[D]ismissal on statute of limitations grounds is
appropriate only if it is apparent from the face of the
complaint that the claim is time-barred’ because ‘[a]
statute of limitations bar is an affirmative defense,
and ... plaintiff[s] [are] not required to negate an
affirmative defense in [their] complaint.’”
City of Birmingham, 515 F. App’x 813, 815 (11th Cir.
2013) (quoting La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004)).
In other words, “[a]t
Plaintiffs can prove no set of facts that toll the
Id. (quoting Tello v. Dean Witter Reynolds,
abrogated on other grounds as recognized in Walter v.
Avellino, 564 F. App’x 464, 466 (11th Cir. 2014)).
The court concludes that at least some of Edwards’s
claims are not due to be dismissed as untimely filed.
(Some might well be subject to dismissal as untimely,
and it is entirely possible that those claims which did
survive would turn out, following discovery and the
presentation of evidence at summary judgment, to be
For example, Edwards has stated a timely
Eighth Amendment claim for denial of healthcare.
actions is drawn from the relevant state statute of
limitations for personal-injury tort claims, which is,
in Alabama, two years.
See Wallace v. Kato, 549 U.S.
384, 387 (2007); 1975 Ala. Code § 6-2-38. 5
Edwards was released from jail, it appears, at 6:09
a.m. on November 27, 2011; he filed the complaint in
this case on November 27, 2013.
The defendants argue
that this “provid[es] a limited window for any claim to
have arisen”--a bit more than six hours, to be exact-5. Incidentally, this same statute of limitations
applies to ADA and Rehabilitation Act claims as well.
See Everett v. Cobb Cnty. Sch. Dist., 138 F.3d 1407,
1409-10 (11th Cir. 1998).
and that the original and amended complaints fail to
“specify any date when the alleged conduct occurred.”
Defs.’ Opp’n to Pl.’s Am. Compl. (doc. no. 26) at 4.
But, in fact, Edwards need not allege that his claims
first arose on the morning on of November 27, 2011,
only that they then accrued.
This subtle distinction
makes all the difference.
Although state law establishes the length of the
limitations period to begin.”
Baker v. Sanford, 484 F.
App’x 291, 293 (11th Cir. 2012) (citing Wallace, 549
U.S. at 388).
“An ‘allegation of a failure to provide
needed and requested medical attention constitutes a
continuing tort, which does not accrue until the date
prisoner is released
care thus ends).
(and the obligation to provide
Id. (quoting Lavellee v. Listi, 611
F.2d 1129, 1132 (5th Cir. 1980)) (concluding that the
district court had erred in dismissing a prisoner’s
claims regarding “prison officials’ prolonged failure
Edwards’s amended complaint is not exactly a model
refusals to provide care.
For example, his complaint
states that, “During Plaintiff’s incarceration in the
orthopedic surgeon and  the physical therapist for
Am. Compl. (doc. no. 24-1) at 2.
The complaint also states that “Defendants failed to
provide Plaintiff with adequate medication [that he had
been prescribed] to treat” his diagnosed post-traumatic
attention deficit hyperactivity disorder.
Id. at 3.
Moreover, the complaint repeatedly states that Edwards
or his family members made the defendants aware of his
Edwards is not challenging any particular instance in
which he was denied care; rather, he contends that he
suffered from serious ailments upon entering the jail
and consistently requested and was denied treatment for
those ailments, throughout his incarceration until the
point of his release.
complaint that th[is] claim is time-barred,” Lindley,
515 F. App’x at 815.
To prevail on summary judgment or
continued unabated until the day he was released.
now, though, the defendants have not shown that all of
his claims are due to be dismissed as time-barred.
counsel on notice that it has serious concerns about
the viability of Edwards’s claims in the face of the
immunity arguments put forward by the defendants in
their original motion to dismiss, and in light of the
amend the complaint to address them.
these arguments are renewed, Edwards’s counsel would do
well to respond with significantly more substance than
he did to the defendants’ initial motion to dismiss.
* * *
motion for leave to file his first amended complaint
(doc. no. 24) is treated as a motion for permission to
file his amended complaint two days late, and granted.
motion for an order to show cause (doc. no. 27), which
is actually not a motion but instead his response to
DONE, this the 9th day of June, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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