CLARK v. FYE, et al

Filing 92

ORDER ADOPTING as modified 85 Report and Recommendations; and GRANTING 65 Motion for Summary Judgment. Plaintiff's claims are DISMISSED with prejudice. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 3/2/2020. (kat)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ROBERT L. CLARK,
Plaintiff,
v.

CHIQUITA A. FYE, et al.,

Defendants.

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CIVIL ACTION NO. 5:18-cv-71 (MTT)

ORDER
United States Magistrate Judge Stephen Hyles recommends granting the
Defendants’ motion for summary judgment. Doc. 85. The Plaintiff filed an objection, so
pursuant to 28 U.S.C. § 636(b)(1), the Court reviews de novo the portions of the
Recommendation to which he objects.
In response to the Magistrate Judge’s recommendation that the Court grant
summary judgment on the Plaintiff’s claim arising from his alleged bipolar disorder, the
Plaintiff in his objection argues that in 2013 Dr. Fye discontinued his Elavil prescription,
which had been prescribed to help him sleep and reduce his anxiety. Doc. 88 at 4. As
the Recommendation makes clear, there is no evidence that the Plaintiff actually has a
bipolar disorder, and there is no evidence that he claimed to have a bipolar disorder
before February 2018, other than the Plaintiff’s “conclusory” allegation that he told Dr.
Fye in 2013 that he had bipolar disorder. Doc. 85 at 20. That the Plaintiff had a
prescription to help him sleep and reduce anxiety would not have given Dr. Fye notice
of his alleged bipolar disorder. Thus, in the face of no evidence that the Plaintiff has or

ever had a bipolar disorder and that he never claimed to have such a disorder until
2018, there stands only his conclusory allegation. Still, his alleged 2013 statement to
Dr. Fye is some evidence that Dr. Fye was subjectively aware of his unsupported claim
to have a bipolar disorder. But as the Recommendation makes clear, even if that were
sufficient to create a fact issue regarding Dr. Fye’s subjective awareness, her response
or lack of response to that conclusory allegation does not, as a matter of law, constitute
deliberate indifference. That Dr. Fye discontinued medication for sleep and anxiety
relief does not change that.
Additionally, the Court finds that the Defendants’ statute of limitations argument
has merit. The Defendants argue that the Plaintiff’s claims are time-barred because the
only alleged refusal of medical care occurred in May 2013, the statute of limitations for
deliberate indifference under 42 U.S.C. § 1983 is two years in Georgia, and the
complaint was not filed until February 2018, almost five years later. Doc. 65-1 at 6. The
Court agrees.
The Magistrate Judge rejected that argument for two reasons: first, that the
Plaintiff alleged denials of medical care which occurred after May 2013; and second,
that the Plaintiff’s grievance history may have tolled the statute. The Court earlier found
that those two arguments had sufficient merit at the motion to dismiss stage. Doc. 56 at
6-10. As to the first argument, the Court noted that absent tolling, any claims based on
the alleged May 2013 denial were time-barred, but “construing his complaint liberally,
[the Plaintiff] alleges [Defendant Fye] refused him medical care up until the time the
complaint was filed.” Id. at 8 (citing Docs. 1 at 5; 1-1 at 1). The pleadings cited by the
Court referenced denials of treatment after May 2013 by unnamed prison medical staff,

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which, liberally construed, the Court took to include Dr. Fye. But at the motion for
summary judgment stage, the Plaintiff “may not rest upon the mere allegations or
denials in its pleadings. Rather, its responses . . . must set forth specific facts showing
that there is a genuine issue for trial.” Walker v. Darby, 911 F.2d 1573, 1576–77 (11th
Cir. 1990); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In his
deposition, the Plaintiff clarified that he only had one medical visit with Dr. Fye, in May
2013, and there is no evidence she refused him treatment after that. Doc. 65-3 at 11:812:11, 19:16-20:12. Although the Plaintiff also stated that Dr. Fye “wouldn’t talk to me
no more,” that is not sufficiently specific to state a basis for a deliberate indifference
claim. Id. at 20:10-12. The Court construed the complaint liberally at the motion to
dismiss stage. But after further narrowing the issues through discovery and the
Defendants’ motion, it is clear that there is not sufficient evidence for a reasonable jury
to find that Dr. Fye denied the Plaintiff medical care after May 2013.
The second ground for the Court’s rejection of the Defendants’ statute of
limitations argument at the motion to dismiss stage was tolling. Doc. 56 at 8; see
Lindley v. City of Birmingham, Ala., 515 F. App'x 813, 815 (11th Cir. 2013) (“[a]t the
motion-to-dismiss stage, a complaint may be dismissed on the basis of a statute-oflimitations defense only if it appears beyond a doubt that Plaintiff[] can prove no set of
facts that toll the statute.” (quotation marks and citation omitted)). The Court found that
the possibility of tolling precluded granting the motion for two reasons: mental incapacity
and exhaustion of administrative remedies. The Court noted that “the standard for
alleging mental incapacity so as to invoke the tolling provision for mental incapacity and
withstand a motion to dismiss is not so onerous.” Doc. 56 at 9-10 (emphasis added)

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(quoting Meyer v. Gwinnett County, 636 F. Appx. 487 (11th Cir. 2016)). But the Court in
Meyer distinguished cases involving the Plaintiff’s burden at the summary judgment
stage, which is more onerous. Meyer, 636 F. App'x at 489–90 (“None of the cases
relied on by the district court and the appellees are to the contrary because they all
concern a plaintiff's ultimate burden of proof on appeal from summary judgment, not the
sufficiency of allegations in the face of a motion to dismiss. See Martin [v. Herrington
Mill, LP], 730 S.E.2d at 165–67; Anglin v. Harris, 244 Ga.App. 140, 534 S.E.2d 874, 875
(2000); Carter v. Glenn, 243 Ga.App. 544, 533 S.E.2d 109, 111–12 (2000); Charter
Peachford Behavioral Health Sys., Inc. *490 v. Kohout, 233 Ga.App. 452, 504 S.E.2d
514, 519 (1998).”). Now that the record has been developed, it is clear there is no
evidence of mental illness or disease, much less evidence the Plaintiff has “‘such
unsoundness of mind . . . as to incapacitate [him] from managing the ordinary business
of life.’” Meyer, 636 F. App'x at 489 (quoting Martin, 316 Ga. App. at 698, 730 S.E.2d at
166).
As to grievances, the Court, liberally construing the Plaintiff’s allegations, earlier
concluded that the Plaintiff’s grievances may have tolled the statute of limitations. See
Leal v. Georgia Dep't of Corr., 254 F.3d 1276, 1280 (11th Cir. 2001) (“Because the
statute of limitations may have been tolled on account of [the Plaintiff’s] exhaustion of
administrative remedies, it does not appear beyond a doubt from the complaint itself
that [the Plaintiff] can prove no set of facts which would avoid a statute of limitations
bar.”). But now Dr. Fye has moved for summary judgment on that issue, and the
Plaintiff has failed to respond with specific facts, or any facts for that matter, to support
an argument for tolling. Based on the two-year statute of limitations, in light of the

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Plaintiff’s failure to produce evidence supporting tolling or even to argue tolling at the
summary judgment stage, the Court finds that the statute of limitations bars the May
2013 claims.
For those reasons, the Court finds the Defendants’ statute of limitations defense
is meritorious. As modified, the Court accepts and adopts the findings, conclusions,
and recommendations of the Magistrate Judge. The Recommendation (Doc. 85) is
ADOPTED as modified and made the Order of the Court. Accordingly, the
Defendants’ motion for summary judgment (Doc. 65) is GRANTED, and the Plaintiff’s
claims are DISMISSED with prejudice.
SO ORDERED, this 2nd day of March, 2020.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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