Bennett v. Correctional Medical Services

Filing 24

OPINION and ORDER Overruling 23 Objections, adopting 22 REPORT AND RECOMMENDATION, granting 14 MOTION to Dismiss and Dismissing 1 Complaint With Prejudice. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
NEIL BENNETT,
Plaintiff,

Case No. 12-15405
Honorable Thomas L. Ludington

v.
CORRECTIONAL MEDICAL
SERVICES,
Defendant.
/
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,
GRANTING DEFENDANT’S MOTION TO DISMISS, AND DISMISSING
PLAINTIFF’S CLAIMS WITH PREJUDICE
Neil Bennett is currently a prison inmate in the custody of the Michigan Department of
Corrections (MDOC). On December 4, 2012, Bennett filed a pro se civil rights complaint under
42 U.S.C. § 1983, alleging that Defendant Correctional Medical Services (CMS) was
deliberately indifferent to his serious medical needs in violation of the Eighth Amendment.
On July 25, 2013, CMS filed a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). The motion was referred to United States Magistrate Judge R. Steven
Whalen under 28 U.S.C. § 636(b)(1)(B), and on January 31, 2014, Judge Whalen issued a report
recommending that CMS’s motion to dismiss be granted and Bennett’s complaint be dismissed
with prejudice. See Report & Rec. 1, ECF No. 22. Specifically, Judge Whalen concluded that
CMS is entitled to dismissal because the applicable statute of limitations expired before Bennett
filed his complaint. Id. at 5.

Bennett filed objections to Judge Whalen’s report on February 19, 2014. Based on what
follows, those objections will be overruled, Judge Whalen’s report and recommendations will be
adopted, and Bennett’s complaint will be dismissed with prejudice.
I
In his complaint, Bennett alleges that in October 2008 he noticed swelling in his right
testicle.1 MDOC’s medical contractor at the time was CMS.2 Bennett alleges that he scheduled
a medical examination by CMS, but staff “ignored” the swelling. Bennett made requests for
outside consultation on November 5, November 26, and December 6, 2008, but CMS denied
each request. See Pl.’s Compl. ¶ 9, ECF No. 1. Finally, on March 4, 2009, CMS “gave approval
for outside consultation.” Id.
Bennett met with Doctor Tony Pinson on March 4, 2009. In his complaint, Bennett
alleges that Dr. Pinson “was visibl[y] angry and stated that he should have been consulted long
before [Bennett’s testicle] reached it’s [sic] current size on 3/4/09.”

Id.

Dr. Pinson

recommended that Bennett undergo a hydrocelectomy (otherwise known as a hydrocele repair)
to remove a testicular hydrocele that had formed in Bennett’s scrotum.

The surgery was

conducted on April 3, 2009.
According to Bennett, after surgery, Dr. Pinson informed him “that the delay in treatment
would result in scaring [sic] and pain issues for life.” Id. Bennett also alleges that Dr. Pinson
indicated it was possible he would be unable to “procreate due to the delay tactics by C.M.S.”
Id.

1

In an affidavit attached to his objections, however, Bennett indicates that he noticed the swelling in his testicle in
July 2007, and that he learned he suffered from “testicular hydrocele” on September 26, 2007. Bennett Aff. ¶¶ 1, 2,
attached as Pl.’s Obj. Ex. A.

2

MDOC’s contract with CMS ended on March 31, 2009, and was not renewed.
-2-

Eventually, on August 18, 2011, Bennett filed a Step I grievance with MDOC. See Pl.’s
Compl. Ex. 1. In the grievance form, Bennett alleged that CMS made him “wait until [his] right
testicle, (swollen from hydrocele) reached an enormous pre-determined measured size before
allowing outside follow-up and surgery. . . . This negligent delay is the cause of severe post
surgery scarring of the testicle . . . which has caused the testicle to become severely
deformed/banana shaped.” Id. According to Bennett, the scar tissue covering the testicle “has a
hardening effect which causes great pain and suffering on a daily basis.” Id. Bennett’s Step I
grievance was denied on September 11, 2011. Id.
Bennett then filed a Step II grievance (an appeal of the Step I grievance) which was
denied on October 31, 2011, see Pl.’s Compl. Ex. 2, and a Step III grievance which was denied
on January 4, 2012, see Pl.’s Compl. Ex. 3. Finally, on December 4, 2012, Bennett filed the
complaint in this action.
II
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain
statement showing that the pleader is entitled to relief.” To survive a motion to dismiss pursuant
to Rule 12(b)(6), a complaint must contain sufficient factual matter to state a claim for relief that
is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007) (internal quotation marks omitted)). A claim is plausible
when the plaintiff pleads factual content sufficient to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Generally, however, a
Rule 12(b)(6) motion to dismiss should be granted “when the statement of the claim
affirmatively shows that the plaintiff can prove no set of facts that would entitle him to relief.”
New Eng. Health Care Emps. Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir.

-3-

2003) (emphasis in original) (quoting Ott v. Midland-Ross Corp., 523 F.2d 1367, 1369 (6th Cir.
1975)).
III
Judge Whalen concluded that Bennett’s complaint comes too late, and thus CMS’s
motion to dismiss should be granted. See Report & Rec. 5. Bennett filed objections to Judge
Whalen’s report, arguing that Judge Whalen’s conclusions regarding the applicable statute of
limitations are erroneous. Upon review, Judge Whalen is correct, and Bennett’s complaint will
be dismissed.
A
The statute of limitations for § 1983 cases arising in Michigan is three years. See
Chippewa Trading Co. v. Cox, 365 F.3d 538, 543 (6th Cir. 2004) (Michigan’s three-year statute
of limitations “is borrowed for § 1983 claims”); Mich. Comp. Laws § 600.5805 (“the period of
limitations is 3 years . . . for injury to a person or property.”). In the Sixth Circuit, “the statute of
limitations period begins to run when the plaintiff knows or has reason to know that the act
providing the basis of his or her injury has occurred.” Collyer v. Darling, 98 F.3d 211, 220 (6th
Cir. 1996) (citing Friedman v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991)). In other
words, “in determining when the cause of action accrues in § 1983 cases, we look to the event
that should have alerted the typical lay person to protect his or her rights.” Cooey v. Strickland,
479 F.3d 412, 416 (6th Cir. 2007) (brackets and citation omitted).
The Prison Litigation Reform Act requires exhaustion of administrative remedies before
the filing of a lawsuit challenging the conditions of confinement. See 42 U.S.C. § 1997e(a).
“For this reason, the statute of limitations which applie[s] to [a plaintiff’s] civil rights action [is]

-4-

tolled for the period during which his available state remedies [are] being exhausted.” Brown v.
Morgan, 209 F.3d 595, 596 (6th Cir. 2000) (citations omitted).
B
Assuming that Bennett properly exhausted his administrative remedies through the threestep grievance process,3 the statute of limitations was tolled from August 18, 2011 (the date he
filed the Step I grievance), through January 4, 2012 (the date his Step III grievance was denied).
Accordingly, the statute of limitations was paused for 140 days. So the question becomes:
Taking into account this 140-day tolling period, did Bennett file a complaint within three years
of the accrual of his claim?
Judge Whalen concluded that he did not. Because Dr. Pinson told Bennett on April 3,
2009, that he would suffer scarring and pain “for life” as a result of the delay in treatment, Judge
Whalen considered April 3, 2009, “the latest date on which [Bennett] would have had reason to
know that he suffered harm because of CMS’s delay in authorizing treatment . . . .” Report &
Rec. 4. Starting with April 3, 2009, and adding 140 days for the time Bennett spent exhausting
the available administrative remedies, Bennett must have filed his complaint on or before August
21, 2012, for it to be timely under Michigan’s three-year statute of limitations. Noting that the
complaint was not filed until more than three months later, Judge Whalen concluded it should be
dismissed as untimely.
Bennett objects to that conclusion. He first cites to 42 U.S.C. § 1997e(e), which provides
that “[n]o federal civil action may be brought by a prisoner . . . for mental or emotional injury
suffered while in custody without a prior showing of physical injury or the commission of a
sexual act (as defined in section 2246 of Title 18).” He then argues that on April 3, 2009, “Dr.
Pinson (actually) stated that [Bennett] ‘may’ have scarring and pain in the future.” Pl.’s Obj. 1.

3

In its motion to dismiss, CMS also alleges that Bennett failed to properly exhaust his administrative remedies.
-5-

Bennett argues that he did not suffer an actual “injury” as of April 3, 2009, and thus he could not
file his suit at that time due to the requirements of § 1997e(e). Id. at 2.
Of course, Bennett has omitted the crucial component of § 1997e(e)—that it applies to
actions “for mental or emotional injury.” See Thompson v. Carter, 284 F.3d 411, 418 (2d Cir.
2002) (“Section 1997e(e) refers only to claims for mental or emotional suffering”). Bennett is
not alleging an action for merely mental or emotional injury, and thus § 1997e(e) would not
apply to bar his claims.
Bennett proceeds, arguing that “[t]he EXACT DATE in which [he] knew/understood or
realized that he had an actual RESIDUAL INJURY caused by (CMS’s) delay in treatment of his
testicular hydrocele was on August 9, 2011 . . . .” Pl.’s Obj. 3. But this argument is without
merit.
Indeed, the Sixth Circuit has established that a claim accrues when “the plaintiff knows
or has reason to know of the injury that is the basis of the action.” Scott v. Ambani, 577 F.3d
642, 646 (6th Cir. 2009) (emphasis added) (citation omitted). Bennett’s action is based on
CMS’s delay in authorizing outside consultation, and Bennett was aware of this delay at least as
of April 3, 2009. Moreover, on April 3, Dr. Pinson informed Bennett that the delay could cause
scarring and lifelong pain. So even if Bennett had yet to suffer that scarring and lifelong pain, he
certainly was aware that “the act providing the basis of his” injury had occurred. Collyer, 98
F.3d at 220. Accordingly, Judge Whalen is correct, and the statute of limitations concerning
Bennett’s claim began to run—at the latest—on April 3, 2009. Because Bennett did not file his
lawsuit within three years of that date, accounting for the 140 days he spent exhausting
administrative remedies, his complaint is untimely and will be dismissed.

-6-

IV
Accordingly, it is ORDERED that Bennett’s objections, ECF No. 23, are
OVERRULED.
It is further ORDERED that Judge Whalen’s report and recommendations, ECF No. 22,
are ADOPTED.
It is further ORDERED that CMS’s motion to dismiss, ECF No. 14, is GRANTED.
It is further ORDERED that Bennett’s complaint, ECF No. 1, is DISMISSED with
prejudice. This is a final order and closes the case.
Dated: February 27, 2014

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail, and
upon Neil Bennett #620691, Gus Harrison Correctional Facility, 2727 E. Beecher
St., Adrian, Michigan 49221 by first class U.S. mail, on February 27, 2014.
s/Tracy A. Jacobs
TRACY A. JACOBS

-7-