Martino v. United States Marshal Service et al

Filing 8

MEMORANDUM AND ORDER ENTERED: This action is dismissed as time-barred and all relief is denied. Plaintiff's motion 2 for order allowing service by United States certified mail on all defendants is denied as moot. Signed by Senior District Judge Sam A. Crow on 3/14/2012. (Mailed to pro se party Joseph Anthony Martino by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOSEPH A. MARTINO,
Plaintiff,
v.

CASE NO.

11-3075-SAC

UNITED STATES MARSHAL
SERVICE, et al.,
Defendants.
MEMORANDUM AND ORDER
Mr. Martino, a federal prison inmate, filed this pro se
civil complaint and paid the filing fee in full.
unsanitary

conditions

and

denial

of

proper

He claims that
initial

medical

treatment at a county jail caused him to contract a serious ongoing
medical condition.

Upon screening the complaint the court entered

a Memorandum and Order in which it granted plaintiff time to submit
his complaint upon forms and to show cause why his claims should
not be dismissed for reasons stated in the Memorandum and Order,
including that the claims appear to be time-barred.

Plaintiff has

submitted his complaint upon forms as required, and this Amended
Complaint (Doc. 6) now governs this dispute. He has also filed his
Response to Order to Show Cause (Doc. 7).

Having considered all

materials filed together with the relevant legal authority, the
court rejects plaintiff’s argument that his claims accrued some
time after he was released from the county jail.

Accordingly, the

court dismisses this action as time-barred and denies all relief.

ALLEGATIONS IN AMENDED COMPLAINT
In his Amended Complaint, Mr. Martino has deleted several
defendants, and now names only James Gilchrist, in his individual
capacity and “as Captain of the JCDC”; and County of Jackson,
Kansas.1

He sets forth two claims: (1) “gross negligence” under

state law2 and (2) cruel and unusual punishment.3
support for both claims, he alleges the following.

As factual
On March 25,

2008, Mr. Martino was arrested in Saline County, Kansas for federal
drug law violations.

He was transferred to the Jackson County

Detention Center (JCDC) for pretrial detention after his first
appearance or arraignment, which was on March 28, 2008.4

During

intake, plaintiff stated that he has Jobbs Syndrome and back
problems.

Thus, defendants were “completely aware” that plaintiff

1

Plaintiff again includes “John Does 1-25” as defendants. However,
he has never provided information from which the identity of any of these persons
might be ascertained.
Nor does he describe what acts or inactions they
personally took that resulted in his alleged injuries. Thus, there is no way
that service could be effectuated upon any of these John Doe defendants by mail
or otherwise.
2
Generally, claims based upon state law are not grounds for relief in
a civil rights complaint.
Plaintiff asserts that the court has pendent
jurisdiction over his state law claim, but that is correct only if the court also
has jurisdiction over some federal claim. The court assumes that plaintiff might
assert diversity jurisdiction in any event.
3

In the body of his complaint, plaintiff also asserts violation of his
rights to due process under the Fifth and Fourteenth Amendments. A federal
pretrial detainee has a right to be free from punishment under the Due Process
Clause.
Bell v. Wolfish, 441 U.S. 510, 535 (1979).
However, the Eighth
Amendment standard provides the analytic framework for such claims. See Craig
v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998). The Eighth Amendment requires
jail officials “to provide humane conditions of confinement by ensuring inmates
receive the basic necessities of adequate food, clothing, shelter, and medical
care and by taking reasonable measures to guarantee the inmate’s safety.” Barney
v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998).
4

The court takes judicial notice of the records in Mr. Martino’s
criminal case, which show that his arraignment was held on March 28, 2008. U.S.
v. Martino, 08-cr-40027-SAC (Doc. 3).

2

“was susceptible to contracting the MRSA disease.”5

Three days

later, plaintiff asked to see medical staff for back pain and a
skin infection on his shoulder.

He was not seen until April 16,

2008, and then was prescribed an antibiotic.

On September 23,

2008, plaintiff requested medical attention for an infection on his
nose. He was promptly seen by medical staff, given medication, and
a culture was taken.

On September 27, 2008, “a positive finding of

Methicillin-Resistant Staphlococcus Aureus (MRSA) was made from the
culture,” and new medication was prescribed.

Plaintiff alleges

that no follow-up care was given at the same time that he alleges
that during the period of April through December 2008, he “was
treated for MRSA but was charged for prescriptions and medical
treatment.” On December 12, 2008, Mr. Martino was granted pretrial
release and allowed to return to California.
through October

2009,

he was

treated

by

From April 2009

private

health

care

providers in California for MRSA outbreaks.
Plaintiff does not describe specific acts by defendant
Gilchrist or any of the John Doe defendants or any particular
unsanitary condition caused by them that led to his allegedly
contracting MRSA while at the JCDC.

Nor does he describe any

5
Apparently in support of this statement, plaintiff also alleges that
the sentencing court, which was the undersigned judge, “even advised the JCDC
ahead of time that Plaintiff was predisposed” to MRSA and acknowledged along with
the U.S. Attorney’s Office that the JCDC was known to have a problem with
infectious diseases.
These matters were raised by defense counsel and are
reflected in the presentence report. However, plaintiff did not appear before
the undersigned for sentencing prior to his detention at the JCDC.

3

actual policy of the county6 that led to his contracting MRSA while
there.

Instead, he makes the following conclusory allegations.

Defendants subjected him to unhealthy, unsanitary, substandard
conditions at the JCDC that resulted in his being exposed to and
infected with MRSA, and his injuries were “consistent with an
institutionalized

practice”

of

the

JCDC

defendant Gilchrist and Jackson County.

which

was

known

to

Defendants failed to

“properly train Defendants (and John Does);” to “instruct them in
the applicable Kansas state laws and the proper . . . practice of
institutionalized standard of care;” to take any effective action
to prevent “JCDC personnel from continuing to engage in this type
of conduct;” and to control and discipline employees, including the
named

defendants

deliberate

known

indifference.

to

be

irresponsible

Defendants

and

tolerated

the

practicing
negligent

misconduct” and “tolerated as institutionalized practices” the
“failure to follow routine maintenance for sanitary and healthful
living conditions to prevent disease” and the “failure to implement
screening measures for infection for all inmates.”
Plaintiff does allege specific facts indicating that he has
6
Plaintiff indicates in his Amended Complaint that he is suing
defendant Gilchrist in his individual and official capacities. “[A section 1983]
suit against a municipality and a suit against a municipal official acting in his
or her official capacity are the same.” Watson v. City of Kansas City, 857 F.2d
690, 695 (10th Cir. 1988). “A plaintiff suing a municipality under section 1983
for the acts of one of its employees must prove: (1) that a municipal employee
committed a constitutional violation, and (2) that a municipal policy or custom
was the moving force behind the constitutional deprivation.” Myers v. Okla.
County Bd. Of County Com’rs, 151 F.3d 1313, 1316 (10th Cir. 1998). Thus, in
order to hold Jackson County liable, Mr. Martino must show that his injuries were
the result of an unconstitutional “policy or custom” established by the
policymakers for Jackson County. See St. Louis v. Praprotnik, 485 U.S. 112, 123
(1988)(plurality opinion).
Neither an individual nor a municipality can be
liable in a civil rights action on a theory of respondeat superior. Hafer v.
Melo, 502 U.S. 21, 25 (1991).

4

suffered serious injuries as a result of his having contracted
MRSA.7

He seeks compensatory and punitive damages and costs of

this action.

RESPONSE TO ORDER TO SHOW CAUSE
In the court’s screening order, Mr. Martino was informed
that a court may “consider affirmative defenses sua sponte” for the
purpose of dismissal under 28 U.S.C. § 1915 “when the defense is
obvious from the face of the complaint and no further factual
record is required to be developed.”

Fratus v. Deland, 49 F.3d

673, 674-675 (10th Cir. 1995)(quotations and alterations omitted).
The court applied the two-year statute of limitations for personal
injury actions in Kansas to his claims,8 and found they had
“accrued” prior to his release from the JCDC on December 12, 2008.
It further found that Mr. Martino had executed his complaint on
March 30, 2011, which was more than two years after his claims had
accrued and that any pre-March 30, 2009 claims were time-barred as

7

He alleges that he has “suffered significant pain and scar
deformities from multiple surgical procedures;” has suffered “from multiple
psychological conditions” requiring treatment; his immune system has been
permanently damaged so that he needs lifelong medical treatment; he is now
unisurable; and he has incurred thousands of dollars in medical and pharmacy
costs.
8

Federal courts apply state statutes of limitations for personal
injury actions to § 1983 claims. See Wallace v. Kato, 549 U.S. 384 (2007);
Wilson v. Garcia, 471 U.S. 261, 276 (1985). “[A] Bivens action, like an action
brought pursuant to 42 U.S.C. 1983, is subject to the statute of limitations of
the general personal injury statute in the state where the action arose.”
Industrial Constructors Corp. v. Bureau of Reclamation, 15 F.3d 963, 968 (10th
Cir. 1994)(citing Wilson 471 U.S. at 261). Because plaintiff’s cause of action
arose in Kansas, the court applies Kansas’ two-year statute of limitations period
for bringing an action for “injury to the rights of another.” Kan. Stat. Ann.
60-513(a)(4); see also Johnson v. Johnson County Com’n Bd., 925 F.2d 1299, 1301
(10th Cir. 1991).

5

a result.
In his Response Mr. Martino does not dispute that a twoyear statute of limitations applies in this case, but disagrees
that his claims accrued before his release from the JCDC.

He

argues that his claims did not accrue “until 5 months later, i.e.,
the early part of April 2009, when he had an outbreak again and
went to see his family doctor.”

He claims it was not until then

that he discovered “both the existence and cause” of “this subtle
and more complicated than normal injury.”

Mr. Martino is thus not

asking the court to toll the statute of limitations on equitable
grounds, but to delay the accrual of his claims.
this

argument,

he

alleges

that

he

“was

clean

In support of
with

no

staph

infection prior to being arrested;” and that after “a positive
finding of MRSA was made on September 27, 2008,” he was given new
medication and “the outbreak symptom had disappeared,” which led
him to believe that the MRSA was “gone and under control.”

He

further alleges it was in April 2009 that “the severity of the
injury was ascertained by a professional medical practitioner,”
his “doctor

concluded

that the

MRSA

had

re-occurred”

due

to

defendants’ substandard treatment, and proper medical treatment was
commenced.

He states that “as a layperson,” he “would not have

known the true diagnosis otherwise.”

Based on these allegations,

he contends that the limitations period did not begin to run until
April 2009, and that the filing of his complaint in March 2011 was
“well within” the two-year limitations period.

6

LEGAL STANDARDS
The limitations period begins to run when the cause of
action accrues, and the accrual of an action is determined by
federal law.

Smith v. City of Enid ex rel. Enid City Comm’n, 149

F.3d 1151, 1154 (10th Cir. 1998).

“A civil rights action accrues

when the plaintiff knows or has reason to know of the injury which
is the basis of the action.”

Id. (quotation omitted).

It is the

factual basis of a claim, and not its legal basis, which determines
when a civil rights action accrues.

Fratus, 49 F.3d at 675.

In

other words, a civil rights action accrues when “facts that would
support a cause of action are or should be apparent.”

Id.; Fogle

v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006)(internal quotation
marks and citation omitted); see Thorpe v. Ancell, 367 Fed.Appx.
914, 920 (10th Cir. 2010)(unpublished).9

Because the injury in a

civil rights action is the violation of a constitutional right,
“such claims accrue when the plaintiff knows or should know that
his or her constitutional rights have been violated.”

Fratus, 49

F.3d at 675 (quotations omitted).

DISCUSSION
The allegations in plaintiff’s Amended Complaint clearly
show that his claims for relief are barred by the applicable
statute of

limitations.

Plaintiff

alleges

defendants caused him to contract MRSA.

9

that

the

acts

of

As factual support, he

Unpublished opinions are not cited herein as binding precedent, but
for persuasive reasoning. See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

7

generally alleges that defendants failed to maintain sanitary
conditions and to control the spread of MRSA at the county jail.
He also alleges that defendants failed to provide him with proper
initial medical treatment at the jail.

Thus, the defendants’ acts

or inactions of which plaintiff complains are all alleged to have
occurred at the jail.

Plaintiff’s detention at the Jackson County

Jail was from March 28 to December 12, 2008.

It logically follows

that plaintiff’s claims accrued during that time frame.

Plaintiff

does not allege any facts establishing that defendants committed
other constitutional violations within two years of his filing
this lawsuit.
Plaintiff

does

not

even

argue

“that

the

defendants

committed further constitutional violations against him within the
two-year statutory period preceding the filing of his complaint.”
Rather, he relies upon allegations that “he was subjected to
continuing and worsening ill effects . . . from the defendants’
original actions.” See Frazier v. Jordan, ___Fed.Appx.___, 2007 WL
60883 at *4 (10th Cir.)(unpublished), cert. denied, 550 U.S. 975
(2007)).

He then argues that he did not become aware of the

ramifications of the alleged jail conditions and delay of treatment
until April 2009.

It is clear from plaintiff’s pleadings that he

was aware or should have been aware of his injury, that is his
contraction of MRSA, and its causes at the time the alleged
tortious acts by defendants occurred at the jail in 2008.

See

Zeidler v. United States, 601 F.2d 527, 530 (10th Cir. 1979)(“a
claim does not accrue until a claimant has had a reasonable
8

opportunity to discover all of the essential elements of a possible
cause of action . . .”). Plaintiff’s own allegations indicate that
he first learned he had contracted MRSA in September 2008 at the
JCDC, and not in April 2009 from his private physician.

Cf.

Phillips v. Purdy, 617 F.2d 139, 140-141 (5th Cir. 1980)(reversing
dismissal of prisoner’s § 1983 action on statute of limitations
ground because “[i]f the plaintiff is able to show a satisfactory
reason why he did not learn until 1976 that his tuberculosis
condition was brought about by his confinement in the Dade County
Jail, the period of limitations may not have begun to run until
that time”).

His allegations include the dates on which he was

diagnosed with and treated for MRSA at the JCDC and indicate that
he expressed his fear of contracting MRSA given his predisposition
to infections.

The fact that plaintiff’s symptoms became much

worse upon recurrence after his release does not establish that his
claims based upon his having contracted MRSA accrued at this later
time.

See Helling v. McKinney, 509 U.S. 25, 33 (1993)(exposure of

inmates to a “serious, communicable disease” can violated Eighth
Amendment even if “the complaining inmate shows no serious current
symptoms”); Lymon v. Aramark Corp., 728 F.Supp.2d 1207, 1220
(D.N.M. 2010).
Plaintiff does not expressly argue in this case that there
was

a

continuing

violation,

nor

could

he.

“The

continuing

violation theory ‘is a creation of federal law that arose in Title
VII cases’ and ‘recognizes that certain violations are continuing
in nature.”

Frazier, 2007 WL 60883 at *4 (citing Thomas v.
9

Denny’s, Inc., 111 F.3d 1506, 1513 (10th Cir. 1997)).

The Tenth

Circuit has not recognized the applicability of this theory to
civil rights claims.

In any event, to “establish a continuing

violation, a plaintiff must show that the claimed discriminatory
acts that occurred outside the limitations period were sufficiently
related to at least one act occurring within the relevant filing
period,

thereby

discrimination.”

constituting

a

continuing

pattern

of

Id. (citing Furr v. AT & T Tech., Inc., 824 F.2d

1537, 1543 (10th Cir. 1987)).

In the absence of a violative act by

a defendant “within the two years before this suit was instituted
by plaintiff, the continuing violation doctrine does not apply.”
Palmer v. Board of Com’rs for Payne County Oklahoma, 765 F.Supp.2d
1289, 1299 (W.D. Okla.), aff’d, 441 Fed.Appx. 582 (10th Cir. 2011).
“The continuing violations doctrine is triggered by continual
unlawful acts, not by continual ill effects from the original
violation.”

Id. (citing Bergman v. U.S., 751 F.2d 314, 317 (10th

Cir. 1984), cert. denied, 474 U.S. 95 (1985)).
Even accepting as true that plaintiff did not realize the
full ramifications of his injuries until April 2009, this date was
well before the expiration of the actual two-year statute of
limitations in this case.

Had he discerned the correct accrual

date and diligently pursued his claims, they would not be timebarred.

Mr. Martino provides no reason why he failed to file this

action earlier.10
10

State law also governs the grounds for tolling the limitations
period. See Alexander v. Oklahoma, 382 F.3d 1206, 1217 (10th Cir. 2004), cert.
denied, 544 U.S. 1044 (2005). Plaintiff’s Amended Complaint alleges no facts and

10

In sum, Mr. Martino unfortunately failed to timely file his
civil rights claims within two years of his discovery of the jail
conditions and MRSA infection that form the basis for his claims.
Thus, his claims for monetary relief against defendants for the
allegedly unconstitutional conditions during his confinement in the
Jackson County

Jail

are

barred

by

the applicable

statute

of

limitations and must be dismissed with prejudice pursuant to 28
U.S.C. § 1915A(b).

See Price v. Philpot, 420 F.3d 1158, 1162 (10th

Cir. 2005).
IT IS THEREFORE BY THE COURT ORDERED that this action is
dismissed as time-barred, and all relief is denied.
IT IS FURTHER ORDERED that plaintiff’s Motion for Order
Allowing Service by . . . Certified Mail on All Defendants” (Doc.
2) is denied as moot.
IT IS SO ORDERED.
Dated this 14th day of March, 2012, at Topeka, Kansas.

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

cites no authority under Kansas law that would entitle him to tolling. Nor is
this a case where the plaintiff claims that diminished mental capacity resulted
from the alleged constitutional violation and prevented him from all awareness
of his injury or its cause, or that he was prevented from recognizing his
injuries by government malfeasance.

11