Burdette v. Panola County Jail et al
Filing
32
MEMORANDUM OPINION. Signed by Senior Judge Neal B. Biggers on 10/20/15. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
DERRICK ARTHUR BURDETTE
v.
PLAINTIFF
No. 3:14CV190-NBB-DAS
PANOLA COUNTY JAIL, ET AL.
DEFENDANTS
MEMORANDUM OPINION
This matter comes before the court on the pro se prisoner complaint of Derrick Arthur
Burdette who challenges the conditions of his confinement under 42 U.S.C. § 1983. For the purposes
of the Prison Litigation Reform Act, the court notes that the plaintiff was incarcerated when he filed
this suit. The defendants have moved [21] for summary judgment. The plaintiff has responded to the
motion; the defendants have replied, and the plaintiff has submitted a rebuttal brief to that reply. The
matter is ripe for resolution. For the reasons set forth below, the motion [21] by the defendants for
summary judgment will be granted, and the instant case will be dismissed because the events giving
rise to the plaintiff’s claims occurred outside the applicable statute of limitations.
Summary Judgment Standard
Summary judgment is appropriate if the “materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other materials” show
that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a) and (c)(1). “The moving party must show that if the evidentiary
material of record were reduced to admissible evidence in court, it would be insufficient to permit the
nonmoving party to carry its burden.” Beck v. Texas State Bd. of Dental Examiners, 204 F.3d 629,
633 (5th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986), cert. denied, 484 U.S. 1066
(1988)). After a proper motion for summary judgment is made, the burden shifts to the non-movant to
set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Beck, 204 F.3d at 633; Allen v.
Rapides Parish School Bd., 204 F.3d 619, 621 (5th Cir. 2000); Ragas v. Tennessee Gas Pipeline
Company, 136 F.3d 455, 458 (5th Cir. 1998). Substantive law determines what is material. Anderson,
477 U.S. at 249. “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Id., at 248. If the non-movant sets forth specific facts
in support of allegations essential to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327.
“Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 89 L. Ed. 2d 538 (1986); Federal Savings and Loan, Inc. v. Krajl, 968 F.2d 500, 503 (5th
Cir. 1992). The facts are reviewed drawing all reasonable inferences in favor of the non-moving
party. Allen, 204 F.3d at 621; PYCA Industries, Inc. v. Harrison County Waste Water Management
Dist., 177 F.3d 351, 161 (5th Cir. 1999); Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187,
1198 (5th Cir. 1995). However, this is so only when there is “an actual controversy, that is, when both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994); see Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998). In the absence of
proof, the court does not “assume that the nonmoving party could or would prove the necessary facts.”
Little, 37 F.3d at 1075 (emphasis omitted).
In their motion for summary judgment, the defendants argue that: (1) Burdette did not exhaust
his administrative remedies as required under the Prison Litigation Reform Act, (2) Burdette’s claims
are barred by Mississippi’s three-year general statute of limitations, and (3) the defendants are
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shielded under the doctrine of qualified immunity from suit. As the statute of limitations issue is
dispositive in this case, the court will not address the defendants’ other arguments.
Undisputed Material Facts1
During all times relevant to this suit, Burdette, who was a state inmate convicted for
possession of a controlled substance, was housed at the Panola County Jail. On March 1, 2011,
Burdette and inmate Brashun Taylor had an altercation, after which Burdette told the defendants that
he and Taylor should be separated because another altercation between them could prove deadly. The
defendants decided not to separate the two, and on March 28, 2011, Taylor attacked Burdette from
behind, leaving him injured and unconscious. Burdette was transported to The Med in Memphis,
where he was treated for his injuries. Burdette underwent surgery, recovered in The Med for five
days, and was transferred on April 3, 2011, from the Med to the Unit 42 Hospital at the Mississippi
State Penitentiary in Parchman for 28 days. He was diagnosed with brain and nerve damage affecting
his speech, vision, and memory. Burdette also suffers from headaches and numbness as a result of his
injuries. Burdette’s symptoms have since improved but have not totally subsided.
Burdette was transferred on April 30, 2011, from the Mississippi State Penitentiary back to
Panola County, where he stayed for about 8 months. He was then moved to the Central Mississippi
Correctional Facility in Rankin County, where he stayed for about 45 days – and was then transferred
to the South Mississippi Correctional Institution in Greene County.
Burdette alleges that he was incapacitated from his brain injuries from March 28, 2011 (the
date of the attack) until May 1, 2011 (the date of his transfer back to the Panola County Jail.) He also
1
For the purposes of this memorandum opinion only, the court has accepted as true the plaintiff’s
allegations that he was incapacitated during the time he stayed at a hospital for treatment of his head
injury after the 2011 attack. Also, Burdette’s timeline of events is imprecise; as such, the court has
given him the benefit of the doubt by construing the dates most favorably to his argument that the
statute of limitations should be tolled.
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states that the Panola County Jail has no legal assistance program – and that he received no legal
assistance during his subsequent stays at the Central Mississippi Correctional Facility and the South
Mississippi Correctional Institution. He alleges that after he was released from the Unit 42 Hospital
and transferred to various prison facilities, the forms necessary to file the instant case were not
available to him.
Statute of Limitations
In a case filed under 42 U.S.C. § 1983, the federal court borrows the forum state’s general or
residual personal injury limitations period. Owens v. Okure, 488 U.S. 235, 249 (1989); Gartrell v.
Gaylor, 981 F.2d 254 (5th Cir. 1993). In Mississippi, that statute is Miss. Code Ann. § 15-1-49, which
allows a litigant only three years to file such an action, and the statute begins to run “at the moment
the plaintiff becomes aware he has suffered an injury or has sufficient information to know he has
been injured.” Russel v. Board of Trustees of Firemen, etc., 968 F.2d 489 (5th Cir. 1992), cert. denied,
113 S. Ct. 1266 (1993) (citations omitted). “Under federal law, a section 1983 action generally
accrues when a plaintiff ‘knows or has reason to know of the injury which is the basis of the action.’”
Harris v. Hegmann, 198 F.3d 153, 157 (5th Cir. 1999) (quoting Jackson v. Johnson, 950 F.2d 263,
265 (5th Cir.1992)). Under the “mailbox rule,” a prisoner’s federal pleading is deemed filed when he
delivers it to prison officials for mailing to the district court. Spotville v. Cain, 149 F.3d 374, 376-78
(5th Cir.1998) (relying on Houston v. Lack and its progeny).
Statutory Tolling
Federal courts also adopt the forum state’s tolling principles. Walker v. Epps, 550 F.3d 407,
415 (5th Cir. 2008) (“Just as we borrow the forum state’s statute of limitations for § 1983 purposes,
we borrow also the state’s tolling principles.”) Under Mississippi law:
If any person entitled to bring any of the personal actions mentioned shall, at the time
at which the cause of action accrued, be under the disability of infancy or unsoundness
of mind, he may bring the actions within the times in this chapter respectively limited,
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after his disability shall be removed as provided by law.
Miss. Code Ann. § 15-1-59 (1995). “The term ‘unsound mind,’ when used in any statute in reference
to persons, shall include idiots, lunatics, and persons non compos mentis.” Miss. Code Ann. § 1-3-57
(1972). The tolling provision of Miss. Code Ann. § 15-1-59 does not require an adjudication of
mental disability. Rockwell v. Preferred Risk Mut. Ins. Co., 710 So.2d 388 (Miss. 1998.) Thus, if the
plaintiff can show that he was of unsound mind for a period prior to the expiration of the statute of
limitations, then the court must toll the limitations period during that time.
Equitable Tolling
In addition, the doctrine of equitable tolling may “preserve[] a plaintiff’s claims when strict
application of the statute of limitations would be inequitable.” Lambert v. United States, 44 F.3d 296
(5th Cir. 1995) (citing Burnett v. New York Central R.R. Co., 380 U.S. 424, 428 (1965). Courts have
applied equitable tolling when a plaintiff has received inadequate notice, when a motion for
appointment of counsel was pending, where the court has led the plaintiff to believe that she has done
everything required to vindicate her rights, and where affirmative misconduct by the defendant “lulled
the plaintiff into inaction.” Baldwin Count Welcome Center v. Brown, 466 U.S. 147, 151 (1984). The
common thread in the various cases discussing equitable tolling is that the doctrine is triggered when
“the plaintiff is actively misled by the defendant about the cause of action or is prevented in some
extraordinary way from asserting his rights.” Rashidi v. American President Lines, 96 F.3d 124, 128
(5th Cir.1996) (emphasis added). The plaintiff bears the burden of establishing that equitable tolling is
warranted. See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), modified on reh’g, 223 F.3d 797
(2000) (per curiam). In order to satisfy his burden, the plaintiff must show “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” of
timely filing his [complaint]. Lawrence v. Florida, 549 U.S. 327, 127 S.Ct. 1079, 1085, 166 L.Ed.2d
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924 (2007). The standard is “‘reasonable diligence, not ‘maximum feasible diligence.’” Holland v.
Florida, –––U.S. ––––, 130 S.Ct. 2549, 2565, 177 L.Ed.2d 130 (2010) at (quoting Lonchar v.
Thomas, 517 U.S. 314, 326, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996) and Starns, 524 F.3d at
618). A delay of even four months, however, shows that a plaintiff has not diligently pursued his
rights. Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001).
Calculating the Total Amount of Tolling
Burdette became aware of his injuries on March 28, 2011, the day he sustained them. Thus,
the statute of limitations for claims arising from those injuries expired three years later, on March 28,
2014. Burdette signed the instant complaint on July 15, 2014 – 109 days after the expiration of the
limitations period. As such, this case was untimely filed. Burdette, however, argues that the
limitations period should be tolled for two periods during which he was incapacitated – first, during
his stay at the hospital (through statutory tolling), and second, during his subsequent stay at the Panola
County Jail (through equitable tolling). The court will apply state statutory tolling during Burdett’e 5day stay at The Med following his injury on March 28, 2011, and during his 28-day recovery at the
Mississippi State Penitentiary Hospital at Unit 42 – a total of 33 days. This moves the expiration of
the 3-year limitations period to April 30, 2014 (March 28, 2014 + 33 days). As Burdette did not file
this case until July 15, 2014, even with statutory tolling, the case was filed 76 days beyond the
limitations period.
Burdette also argues that the court should apply equitable tolling during his 8-month stay at
the Panola County Jail – because the Jail does not provide access to a legal library or the form § 1983
complaint. The court declines to do so. Even if the Panola County Jail did not provide legal
assistance or § 1983 complaint forms, the plaintiff could simply have requested the complaint forms
from the court, as many other inmates do on at least a weekly basis. Thus, the plaintiff had
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constitutionally adequate access to the court; he simply failed to take advantage of it. In addition,
even after leaving the Panola County Jail, Burdette waited over two years before pursuing his claim
under 42 U.S.C. § 1983 – far more than the four months the Fifth Circuit Court of Appeals has found
to show lack of due diligence. Hence, as Burdette is not entitled to equitable tolling, his complaint
was filed 76 days beyond the expiration of Mississippi’s 3-year limitations period and will be
dismissed for that reason. A final judgment consistent with this memorandum opinion will issue
today.
SO ORDERED, this, the 20th day of October, 2015.
/s/ Neal Biggers
NEAL B. BIGGERS
SENIOR U. S. DISTRICT JUDGE
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