Atkins v. (lnu) et al

Filing 9

ORDER ENTERED: The complaint is dismissed pursuant to 42 U.S.C. 1983. Signed by Senior District Judge Sam A. Crow on 5/11/2011. (Mailed to pro se party Demetrius Atkins by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DEMETRIUS ATKINS,
Plaintiff,
CIVIL ACTION
No. 09-3270-SAC

vs.
NURSE PRACTITIONER RHONDA, et al.,
Defendants.

ORDER
Plaintiff proceeds pro se and in forma pauperis on a complaint
seeking damages and injunctive relief under 42 U.S.C. § 1983 on
allegations

of

improper

medical

Correctional Facility (HCF).

treatment

at

the

Hutchinson

The two defendants named in the

complaint are HCF Nurse Practitioner Rhonda and HCF Nurse Jammie
Warren.

Plaintiff states that Nurse Practitioner Rhonda gave him

Inderal in September 2007 to treat plaintiff’s migraine headaches,
and claims this medication caused him to experience a serious
medical problem some four days later for which plaintiff received
immediate treatment.

A doctor then discontinued the Inderal,

stating it was not an appropriate migraine medication and was
contrary to plaintiff’s preexisting asthma and diabetes.

Plaintiff

now seeks relief based upon defendants’ alleged negligence and
reckless medical care.
After reviewing plaintiff’s allegations, the court directed
plaintiff to show cause why the complaint should not be summarily
dismissed because plaintiff’s claims were barred by the two year

statute of limitation applicable to his claims.

See Baker v. Board

of Regents of State of Kan., 991 F.2d 628, 630-31 (10th Cir.1993);
K.S.A. 60-513(a)(4).

Moreover, even if not time barred, the court

found plaintiff’s allegations were insufficient to state a plausible
claim for relief under § 1983 against either defendant because
plaintiff at most alleged a state tort claim of malpractice against
Nurse Practitioner Rhonda, and alleged no misconduct by Nurse
Jammie.
In

response,

plaintiff

contends

the

two

year

statute

of

limitations should be tolled for the four month period plaintiff was
held in segregation immediately after the 2007 incident.

Plaintiff

also appears to reference an “amended malpractice complaint” he will
be filing that will show misconduct by Nurse Jamie in administering
medication not advisable for plaintiff’s medical condition.
The court finds no merit to plaintiff’s argument for tolling,
and continues to find plaintiff’s claims are time barred and should
be dismissed
Citing Hardin v. Strub, 490 U.S. 536 (1989), plaintiff claims
tolling is warranted because his lack of full access to law library
for that four month period in 2007 created a disability.

However,

the Supreme Court in Hardin, examining a Michigan statute that
tolled limitations periods for prisoners, held the Michigan tolling
statute applied to § 1983 actions brought in federal court in that
state.

Id. at 543-44.

While noting other states including Kansas

have similar tolling statutes, the Supreme Court also observed the
Kansas statute, K.S.A. 60-515, is inapplicable to a prisoner who
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“has access to the court for purposes of bringing an action.”
Although

plaintiff

cites

restrictions

on

his

access

to

legal

resources during his four months in segregation, he identifies no
factual basis for establishing he was thereby denied access to the
courts. Also, given the limited duration of plaintiff’s segregation
which still allowed him ample time within the two year limitation
period to initiate his suit in a timely manner, no extraordinary
circumstances are apparent that might warrant equitable tolling of
the state limitation period.
Moreover, the court finds plaintiff’s response and reference to
a possible future amended complaint further highlight that he is
attempting to pursue relief on a state tort claim rather than any
plausible Eighth Amendment claim of deliberate indifference.
The court thus concludes the complaint is time barred and
should be dismissed as stating no claim under § 1983 upon which
relief can be granted.
IT

IS

THEREFORE

28 U.S.C. § 1915(e)(2)(B)(ii).
ORDERED

that

the

complaint

is

pursuant to 42 U.S.C. § 1983.
IT IS SO ORDERED.
DATED:

This 11th day of May 2011 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

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dismissed