Winston v. Kelly et al
ORDER ADOPTING IN PART 14 Partial Report and Recommendations; therefore, pltf's medical classification claim against Green is dismissed, and pltf's claim of deliberate indifference to serious medical needs against Green, Kelly, and Norri s are dismissed; the U.S. Marshal is directed to serve summons and complaint on defts Anderson and Blackmon without prepayment of fees and costs; this action is remanded to Magistrate Judge Volpe for further proceedings with respect to the claims re statute of limitations. Signed by Chief Judge J. Leon Holmes on 8/8/11. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CHARLES A. WINSTON
NO. 5:10CV00180 JLH-JJV
WENDY L. KELLY, Deputy Director of
Health Services, Arkansas Department
of Correction, et al.
The Court has reviewed the Proposed Findings and Partial Recommended Disposition
submitted by United States Magistrate Judge Joe J. Volpe and the objections filed by Charles A.
Winston. Upon de novo review, the Court concludes that the Proposed Findings and Partial
Recommended Disposition should be approved and adopted in part as this Court’s findings.
Magistrate Judge Volpe recommended that the Court find that Winston’s medical
classification claim against Wendy Kelly, Jan Alexander, James Blackmon, Robert Rectenwald,
Marie Austin, Rory Griffin, Crystal Woods, Larry Norris, and Ella Taylor be dismissed as barred by
the statute of limitations. In his objections, Winston contends that his medical classification claims
are not barred by the statute of limitations due to the continuing violation doctrine. Magistrate Judge
Volpe has not been given the opportunity to address the continuing violation doctrine. The Court
has found no Eighth Circuit cases applying the continuing violation doctrine in this context. The
Fifth Circuit has said that the definition and application of the continuing violation doctrine is
“inconsistent and confusing,” Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1560 (5th Cir.
1985), and there are no clear standards, Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir.
1983). The Second Circuit has held “that the continuing violation doctrine can apply to Eighth
Amendment claims of medical indifference brought under 42 U.S.C. § 1983 when the plaintiff . . .
‘allege[s] both the existence of an ongoing policy of [deliberate indifference to a serious medical
need] and some non-time-barred acts taken in furtherance of that policy.’” Shomo v. City of New
York, 579 F.3d 176, 179-82 (2d Cir. 2009) (citing Harris v. City of New York, 186 F.3d 243, 250 (2d
This action is at its initial stage. Winston has filed his complaint, and the Court is required
to screen the complaint pursuant to 28 U.S.C. § 1915A(a), but otherwise no factual record has been
developed. Because the Eighth Circuit has not addressed the application of the continuing violation
doctrine in this context, because the courts have recognized that the application of that doctrine is
not always clear-cut, because no factual record has been developed, and because the magistrate judge
did not have the opportunity to address the doctrine, the Court has decided that it would be better
to permit the action to go forward on the medical classification claims and address the statute of
limitations issues at a later stage, after the defendants have responded to the complaint, and after a
fuller record has been developed.1 Similarly, Winston’s claim against Barry Greenlee will be
permitted to go forward, and the Court will address the issue of limitations at a later stage in the
proceeding on a more fully developed record.
In all other respects, the Court adopts the Proposed Findings and Partial Recommended
Disposition of United States Magistrate Judge Volpe.
There may be other deficiencies in the complaint as to some of the defendants that have
not been addressed by the magistrate judge due to the fact that the magistrate judge
recommended dismissing the action based on the statute of limitations. The Court’s decision
here does not preclude the magistrate judge from engaging in further screening to determine
whether, apart from the issue of limitations, the complaint states a claim.
IT IS, THEREFORE, ORDERED that:
Winston’s medical classification claim against Green is dismissed; and Winston’s
claim of deliberate indifference to serious medical needs against Green, Kelly, and Norris are
Service is appropriate for defendants Roland Anderson and James Blackmon.
The Clerk of the Court shall prepare a summons for defendants Roland Anderson and
The United States Marshal is directed to serve a copy of the complaint and summons
on the defendants without prepayment of fees and costs or security therefore.
As to the remaining claims, i.e., the claims that Magistrate Judge Volpe recommended
be dismissed because of the statute of limitations, the action is remanded to Magistrate Judge Volpe
for further proceedings with respect to those claims. Magistrate Judge Volpe may determine that
service is appropriate with respect to those claims, or he may determine that further screening is
necessary to determine whether some or all of those claims should be dismissed for failure to state
a claim for reasons other than the statute of limitations.
DATED this 8th day of August, 2011.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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