Drumgo v. Radcliff et al

Filing 18

MEMORANDUM. Signed by Judge Gregory M. Sleet on 3/15/13. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

DESHA WN DRUMGO,
Plaintiff,

v.
C/O ANTHONY BURRIS, et al.,
Defendants.

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) Civ. Action No. 12-1204-GMS
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MEMORANDUM
The plaintiff, DeShawn Drumgo ("Drumgo"), an inmate at the James T. Vaughn
Correctional Center, Smyrna, Delaware, appears pro se and was granted permission to proceed in

Jormapauperis. Drumgo filed the complaint pursuant to 42 U.S.C. § 1983. He also raises
supplemental State claims.

I.

BACKGROUND
Drumgo moves for reconsideration of the dismissal of Count 1,2, and 3 of the complaint.

These counts ere dismissed as time-barred. (D.L 13.) He also seeks leave to amend. (D.I. 14.)
Drumgo raised Counts 1,2, and 3 in Drumgo v. Burris, Civ. No 12-068-GMS (D. Del.).
On May 9, 2012, the court dismissed that complaint as noncompliant with Fed. R. Civ. P. 20 and
instructed Drumgo to file separate complaints so that unrelated claims were not contained in the
same complaint. (Id. at D.1. 7.) Having reviewed Civ. No. 12-068-GMS and the instant case, the
court finds that the statute of limitations for Counts 1, 2, and 3 was tolled three months and 29
days (i.e., from the date of the filing the complaint, January 11,2012,1 to the date of entry of the

IThe computation of time for complaints filed by pro se inmates is determined according
to the "mailbox rule." See Houston v. Lack, 487 U.S. 266 (1988); Burns v. Morton, 134 F.3d
109, 112 (3d Cir. 1998); Gibbs v. Decker, 234 F.Supp. 2d 458, 463 (D. Del. 2002). The

May 9,2012 order).2 Drumgo filed the complaint in the instant action on September 9, 2012. 3
(D.I. 3.)

II.

RECONSIDERATION
The purpose of a motion for reconsideration is to "correct manifest errors of law or fact or

to present newly discovered evidence." Max's Seafood Cafe ex rei. Lou-Ann, Inc. v. Quinteros,
176 F.3d 669,677 (3d Cir. 1999). "A proper Rule 59(e) motion ... must rely on one of three
grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3)
the need to correct a clear error of law or fact or to prevent manifest injustice. Lazaridis v.
Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (citing North River Ins. Co. v. CIGNA Reinsurance
Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration is not properly grounded
on a request that a court rethink a decision already made. See Glendon Energy Co. v. Borough of
Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993).

III.

DISCUSSION
For purposes of the statute of limitations, § 1983 claims are characterized as personal

injury actions. Wilson v. Garcia, 471 U.S. 261,275 (1983). In Delaware, § 1983 claims are

complaint in Civ. No. 12-068-GMS was signed on January 11,2012, but there is no post-mark 0
the envelope. The complaint in Civ. No. 12-068-GMS was delivered to prison authorities for
mailing either on or after January 11, 2012. Giving Drumgo the benefit, the court concludes that
the complaint was filed on January 11,2012, the date it was signed, and the earliest date possible
that it could have been delivered to prison officials in Delaware for mailing.
2The court garners assistance from the date calculator found at http://www.timeand
date.com.
See n. 1 supra, for a discussion of the mailbox rule. The complaint was signed on
September 9,2012.
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subject to a two-year limitations period. See 10 DeL C. 10, § 8119; Johnson v. Cullen, 925 F.
Supp. 244, 248 (D. Del. 1996).

A.

Count 1

Count 1 is a conditions of confinement claim for an unsanitary cell and alleges unlawful
acts occurred on March 16, March 18, and May 20, 2012. The calculations for the claims in
Count 1 are as follows:
1.

March 16,2010 claim

Accrual date for
Add two year statute of limitation
Add tolled period 3 months, 29 days

March 16, 2010 claim
March 16,2012
July 15,2012

The March 16,2010 claim should have been filed on or before July 15,2012. However,
it was not refiled until September 9, 2012. Plaintiff did not exercise due diligence in refiling this
claim. It is time-barred.

2.

March 18,2010 claim
March 18,2010 claim
March 18,2012
July 17,2012

Accrual date for
Add two year statute of limitation
Add tolled period 3 months, 29 days

The March 18, 2010 claim should have been filed on or before July 17, 2012. However,
it was not refiled until September 9, 2012. Plaintiff did not exercise due diligence in refiling this
claim. It is time-barred.

3.

May 20, 2010 claim
May 20, 2010 claim
May 20,2012
September 18, 2012

Accrual date for
Add two year statute of limitation
Add tolled period 3 months, 29 days

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The May 20,2010 claim should have been filed on or before September 18,2012. It was
timely filed on September 9, 2012.
Based upon the foregoing, the court will deny the motion for reconsideration as to the
March 16 and March 18,2010 claims and will grant the motion for reconsideration as to the May
20,2010 claim. Because it is unclear against whom the May 20,2010 claim is directed, Drumgo
will be given leave to amend the May 20,2010 claim. Inasmuch as Drumgo will be given leave
to amend, the court will deny as moot his motion for leave to amend. (See D.L 14.)
B.

Count 2

Count 2 is a conditions of confinement claim for inadequate bathroom access. Count 2
alleges unlawful acts occurred on March 2 and April 23, 2012. The calculations for the claims in
Count 2 are as follows:

1.

March 2, 2012 claim

March 2, 2010 claim
March 2,2012
July 1,2012

Accrual date for
Add two year statute of limitation
Add tolled period 3 months, 29 days

The March 2,2010 claim should have been filed on or before July 1,2012. However, it
was not refiled until September 9, 2012. Plaintiff did not exercise due diligence in refiling this
claim. It is time-barred.
2.

April 23, 2010 claim

Accrual date for
April 23, 2010 claim
Add two year statute oflimitation
April 23, 2012
Add tolled period 3 months, 29 days
August 23,2012
The April 23, 2010 claim should have been filed on or before August 23,2012.
However, it was not refiled until September 9, 2012. Similar to the March 2, 2010 claim,

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Drumgo did not exercise due diligence in filing the claim. It, too, is time-barred. Accordingly,
the court will deny the motion for reconsideration as to Count 2.
C.

Count 3

Count 3 alleges excessive force and retaliation as a result of Drumgo's filing a complaint
and a grievance. He alleges the unlawful acct occurred on July 16,2010, when there was a shake
down of his cell. The defendants C/O Young, C/O Warnick, and John Does, led by the defendant
Sgt. Syrita Benson-Williams, participated in the shake down. At that time, Benson-Williams
confiscated all of Drumgo's legal work. When Drumgo protested, she he maced him. The
calculations for the claims in Count 3 are as follows:
July 16,2010 claim
July 16,2012
November 14,2012

Accrual date for
Add two year statute of limitation
Add tolled period3 months, 29 days

The July 16,2010 claim should have been filed on or before November 14, 2012. It was
timely filed on September 9,2012. Therefore, the court will grant the motion for reconsideration
as to Count 3. Drumgo will be allowed to proceed with this claim.
IV.

CONCLUSION

For the above stated reasons, the court will grant in part and deny in part the motion for
reconsideration. (D.I. 13.) Drumgo will be given leave to amend only as to the May 20,2010
claim contained in Count 1. In addition, he will be allowed to proceed with Count 3. The
motion for leave to amend will be denied as moot.
An appropriate order will be entered.

N.415,2013

Wilmington, Delaware

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