Brown et al v. Correctional Medical Services et al
ORDER granting 21 Motion for Summary Judgment. Defendants CMS, Dr. DeSaint Felix, and Dr. Anderson are dismissed. Denying 24 Motion for Summary Judgment. An Amended Final Scheduling Order will issue. Joint report due from the remaining parties by 21 March 2014. Signed by Judge D. P. Marshall Jr. on 3/12/2014. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
KAREN BROWN, Administrator for
the Estate of John Brown
SERVICES, INC. afk/a Corizon;
ARKANSAS DEPARTMENT OF
CORRECTION; RAY HOBBS,
Director, Arkansas Department of
Correction; JOHN DOES 1-3;
DOUGLAS EDMOND DE SAINT FELIX, M.D.;
DARLENE ANTOSH, M.D.; and
JOHN R. ANDERSON, Doctor
Defendants seek summary judgment, arguing that all claims arising
from John Brown's death are now time-barred because Karen Brown-John's
widow and the personal representative/ special administratrix of his
estate- filed this case prose. The parties agree on the material facts. Whether
the Brown Estate's claims fail is therefore a question of law. Picht v. ]on R.
Hawks, Ltd., 236 F.3d 446, 448 (8th Cir. 2001 ).
A timeline is helpful in understanding the legal issues.
16 March 2010
John Brown died from heart-related
medical problems in the custody of
the Arkansas Department of
18 July 2011
Karen Brown appointed personal
administratrix of John Brown's
Karen Brown filed this case prose,
moved for appointed counsel, and
moved for in forma pauperis status.
16 March 2012
Arkansas's two-year statute of
limitation for medical injury by a
medical provider ran, if not tolled
by the complaint.
This Court denied the IFP motion,
but ordered delayed payment of the
filing fee. The Court also appointed
counsel and ordered an amended
14 August 2012
This Court approved the second
amended complaint with some
changes and ordered service.
21 August 2012
Conforming third amended
complaint filed and then served.
Defendants answered, NQ 15 & 17,
and pleaded limitations.
16 March 2013
Arkansas's general three-year
statute of limitation for surviving
tort claims ran, if not tolled by the
complaint or third amended
Defendants moved for summary
judgment. NQ 21 & 24.
Karen Brown is not a lawyer. When she filed this case in early March
2012, she did so as "Karen Brown Administrator for the Estate of John
Brown," NQ 2 at 1, having been duly appointed by the Circuit Court of Saline
County, probate division, some eight months earlier. NQ 28-1 at 7-8. The
Circuit Court's order further reveals that Brown was then represented by
counsel, and that this lawyer was under contract to pursue a wrongful-death
claim. Ibid. Brown's motion for appointed counsel in this Court said that this
lawyer "had the case for months[;] told me she didn't have time." NQ 3.
Brown recognized at the threshold that she faced limitation issues. In a letter
to this Court attached to her IFP motion, she worried how the lawsuit might
affect her children, but filed nonetheless "since there is a statu[t]e of
limitation I have no choice but to pursue this at this time." Ng 1-1.
The limitation issues are a good place to begin. Read liberally, Brown
pleaded § 1983 claims for wrongful death and personal injury to John based
on allegedly inadequate medical care while he was in ADC custody. NQ 2; see
generally Millerv. Centerpoint Energy Resource Corp., 98 Ark. App. 102,106,250
S.W.3d 574,577 (2007)(describing and distinguishing between wrongful-death
and survival claims in Arkansas); compare Andrews v. Neer, 253 F.3d 1052,
1056-58 (8th Cir. 2001)(the two claims are mutually exclusive under Missouri
Appointed counsel rephrased the claims in constitutional
terms- deliberate indifference, cruel and unusual punishment, and failure to
train and supervise-in the third amended complaint.
NQ 14 at 12-15.
However the claims are labeled, Arkansas law provides the limitation
periods. Montin v. Estate of Johnson, 636 F.3d 409,413 (8th Cir. 2011).
While both wrongful-death and survival claims usually must be
brought within three years after accrual, if the claim is one for medical injury
against a medical care provider, the two-year limitation period in the
Arkansas Medical Malpractice Act governs. Pastchol v. St. Paul Fire & Marine
Insurance Co.,326 Ark.140, 143-44,149,929 S.W.2d 713,714-15, 717 (1996); see
also, ARK. CODE ANN. §§ 16-114-201(2)&(3), 16-114-202, and 16-114-203(a).
The generally applicable limitation period for liabilities in tort, ARK. CODE
ANN.§§ 16-56-105(1), applies to surviving claims for wrongs allegedly done
to a person before his death by anyone other than a medical provider. ARK.
CODE ANN.§§ 16-62-101(a)(1); see also Williams v. Bradshaw, 459 F.3d 846,847
(8th Cir. 2006)(Morris S. Arnold, J.).
Correctional Medical Services, and its employees (Drs. De Saint Felix
and Anderson), are entitled to summary judgment. All Brown's claims
against these medical-provider defendants are governed by the Medical
Malpractice Act's two-year limitation period.
Williams and ]ones v.
Correctional Medical Services, Inc., 401 F.3d 950 (8th Cir. 2005), are directly in
point. Brown, as personal representative of her husband's estate, simply
could not practice law by filing the original complaint. Her doing so eleven
days before the statute ran did not save the claims against the medical
The amended complaint, even though it was filed at this Court's
direction and overnight, didn't salvage these claims. The two-year statute
had already run. Williams and Jones provide a clear answer to the relationback question. "When, as here, a complaint amounts to a nullity, it cannot
serve as the foundation for an amendment: Since the original complaint was
without legal effect, there was nothing to amend." Williams, 459 F.3d at 849.
All claims against the medical providers lapsed before the Court appointed
counsel and ordered the amended complaint; and this lapse could not be
cured by counsel's diligence.
Because the ADC1 and Director Hobbs are not medical care providers
as defined by the Malpractice Act, ARK. CODE ANN. § 16-114-201(2), the
analysis as to them is different. All claims against the ADC Defendants are
governed by Arkansas's three-year limitation period. Williams, 459 F.3d at
847; ARK. CODE ANN.§§ 16-56-105(1) and 16-62-102(c)(1). That period ran in
March 2013, three years after John Brown's death. The ADC and Hobbs stand
on Jones and Williams, arguing that the third amended complaint failed as a
matter of law because there was no complaint to amend. This is a powerful
argument, but the Court is unpersuaded. The precedent is distinguishable in
First, there's a procedural difference. In Jones and Williams, the plaintiff
sought permission for a belated amendment, which the district court denied.
401 F.3d at 952 and 459 F.3d at 849. Here, this Court appointed counsel,
The Court construes Hobbs's motion for summary judgment as one
on behalf of all ADC Defendants.
postponed service, and ordered an amended complaint for screening. NQ 4.
A better course, perhaps, would have been to appoint counsel and dismiss
without prejudice in light of Jones and Williams. But this was the Court's
mistake, not Brown's or counsel's. And in the nature of an equitable tolling,
the Estate should not bear responsibility for appointed counsel doing exactly
what the Court ordered done. Baldwin County Welcome Center v. Brown, 466
U.S. 147, 151 (1984)(per curiam).
Second, and more importantly, the third amended complaint was filed,
served, and answered. It asserted the Estate's claims against the ADC
Defendants well within the applicable three-year limitation period. The
district court in Williams "consider[ed] the amended complaint on its own [to
determine if] its claims were barred by the statute of limitation." 459 F.3d
at 849. This Court should do likewise. The Court of Appeals reached this
issue, and affirmed an independent consideration of the proposed pleading's
timeliness. Ibid. Considered on its own, the Brown Estate's August 2012
pleading was timely against the ADC Defendants and contains no defect
involving the unauthorized practice of law. NQ 14.
Unlike in Jones and Williams, no relation-back issue is presented- there
is no reason to invoke or apply Rule 15 because the limitation period had not
yet expired. Yes, the pleading was wrongly named as an amendment. This
is more bad fruit of the Court's order to amend. Substance, though, is more
important than form. And the pleading's substance, as against the ADC
Defendants, is solid. Finally, only the third amended complaint was served,
which started the case in earnest. Accepting the nullity analysis at full force,
Brown's original complaint had no legal effect. That conclusion and the
precedent, though, do not answer the question presented by this record:
whether a later pleading filed by counsel, at the Court's direction, and within
the relevant statute of limitation, had any legal effect. It did. The Estate's
claims against the ADC Defendants are not time-barred.
Nor are they
otherwise compromised by Brown's ineffective original complaint.
* * *
The CMS-related Defendants' motion for summary judgment, NQ 21, is
granted. CMS, Dr. De Saint Felix, and Dr. Anderson are dismissed. The ADC
Defendants' motion for summary judgment, N!! 24, is denied. The Court is not
sure about Dr. Antosh, who is named as a defendant in the third amended
complaint, N!! 14 at 2, but not discussed in the summary-judgment briefing.
The John Does will remain for now, but may be replaced only with ADC
employees. An Amended Final Scheduling Order will issue. Joint report due
from the remaining parties by 21 March 2014 on Dr. Antosh and whether
more time for discovery is needed. The Court will set a new dispositive
motion deadline in any event, because the ADC Defendants are entitled to
raise other issues of law that may exist.
D.P. Marshall Jr.
United States District Judge
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