Kelly v. Strafford County Department of Corrections, Superintendent et al

Filing 44

ORDER granting 24 Motion for Summary Judgment; denying without prejudice 31 Motion for Summary Judgment; granting 40 Motion for Partial Reconsideration; denying without prejudice 43 Motion to Extend Defendants' E xpert Disclosure Deadline; denied in its entirety 29 Motion to Amend 1 Complaint; Original complaint 1 shall be deemed the operative complaint in this action. The clerk is directed to enter judgment and close the case as outlined. So Ordered by District Judge Landya B. McCafferty.(ko) Modified on 6/11/2014 to add: docket text re doc. no. 29 and original complaint text (ko).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Howard D. Kelly
v.

Civil No. 13-cv-107-LM
Opinion No. 2014 DNH 129

Warren Dowaliby, et al.1

O R D E R
Before the court is Dawn Dow, Rebecca Eischen, and Tracy
Warren’s (first) motion for summary judgment (doc. no. 24).2
Plaintiff Howard Kelly has objected (doc. no. 25), and
defendants have replied (doc. no. 27).
Also before the court is the same defendants’ motion for
partial reconsideration of this court’s May 7, 2014, order (doc.
no. 40), which allowed Kelly to add a claim under 28 U.S.C.
§ 1983 against former Strafford County House of Corrections
1

Defendants originally served with the complaint are
Strafford County Department of Corrections (“SCDC”) Nurse Tracy
Warren, and SCDC Medical Department staff members Rebecca
Eischen and Dawn Dow. On May 7, 2014, this court granted, in
part, a motion to amend the complaint to join former SCDC
Superintendent Warren Dowaliby and ten unnamed John and Jane Doe
SCDC Medical Department staff members as defendants to this
action. For reasons stated in this order, the court vacates
that aspect of the May 7 order, and denies the motion to add
claims against Dowaliby and the John and Jane Doe defendants.
2

Defendants Dow, Eischen, and Warren filed their second
motion for summary judgment (doc. no. 31) in March 2014, and
also moved (doc. no. 43) for an extension of the September 1,
2014, deadline for their expert disclosures. The time allowed
for plaintiff to respond to those motions has not yet elapsed.

(“SCHC”) Superintendent Warren Dowaliby, and to join ten John
and Jane Doe SCHC Medical Department employees as defendants to
the claim asserted against Dow, Eischen, and Warren.

Kelly has

not responded to the reconsideration motion.
Background
Kelly has alleged that while he was a federal pretrial
detainee at the SCHC from July 17, 2008, to March 12, 2010, he
suffered from a seizure disorder that defendants did not treat.
In particular, defendants did not provide him with the antiseizure medication originally prescribed for him at a federal
Bureau of Prisons facility in 2003 after he suffered a traumatic
brain injury.
Kelly has alleged that although he complained many times to
SCHC medical department staff about his need for anti-seizure
medication and the frequency of his seizures at the SCHC, he
received no medication or other treatment.

Kelly claims that he

now suffers from migraine headaches, memory loss, loss of
concentration, and vision loss.

Kelly further asserts that the

failure to give him daily doses of anti-seizure medication while
he was at the SCHC caused or exacerbated these problems.
Kelly’s original complaint named Dow, Eischen, Warren, and
Dowaliby as defendants.

This court reviewed the original

complaint in June 2013, pursuant to 28 U.S.C. § 1915A, see

2

Report and Recommendation (doc. no. 9), and concluded that the
allegations relating to Dowaliby in the original complaint did
not state a plausible claim for relief.
19).

See Order (doc. no.

The court further found that Kelly had pleaded plausible

Fourteenth Amendment inadequate medical care claims against Dow,
Eischen, and Warren, and directed service upon those defendants
as follows:
Kelly was denied his Fourteenth Amendment due process
right to adequate medical care during pretrial
detention, because defendants (a) Dow, (b) Eischen,
and (c) Warren, with deliberate indifference, failed
to treat Kelly’s seizure disorder, a serious medical
need.
See Order (doc. no. 10).
Dowaliby from the case.

The court subsequently dropped
See Order (doc. no. 19).

Kelly, in December 2013, moved to amend the complaint to
reinstate a claim against Dowaliby, and to add unnamed John and
Jane Doe SCHC Medical Department employees as defendants to the
Fourteenth Amendment claim served upon Dow, Eischen, and Warren
six months before.

See Mot. to Amend Compl. (doc. no. 29).

This court, on May 7, 2014, granted that motion in pertinent
part, allowing the amended complaint to be filed, and joining
Dowaliby and the John and Jane Does as defendants.
38 (“May 7 order”).

See Doc. No.

In that ruling, the court specifically took

under advisement whether the claims might be barred by the
statute of limitations.

See May 7 order, at 5-6, nn.2-3.

3

Discussion
I.

Summary Judgment
A.

Standard

Under Federal Rule of Civil Procedure 56, a “court
shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” . . . [A] dispute [is] genuine if “a reasonable
jury, drawing favorable inferences, could resolve it
in favor of the nonmoving party. . . . Conclusory
allegations, improbable inferences, and unsupported
speculation, are insufficient to establish a genuine
dispute of fact.”
Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 146 (1st
Cir. 2013) (citations omitted).

Defendants have moved for

summary judgment on their affirmative defenses to the Fourteenth
Amendment claims against Dow, Eischen, and Warren, asserting
that Kelly’s claims are time-barred, and that Kelly failed to
exhaust his administrative remedies before filing suit, as
required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(a).

Finding the statute of limitations issue to be

dispositive, this court expresses no opinion as to whether Kelly
exhausted his administrative remedies.
B.

Statute of Limitations

There is a three-year statute of limitations applicable to
Kelly’s § 1983 claims.
(1st Cir. 2010).

See Gorelik v. Costin, 605 F.3d 118, 121

“Section 1983 claims generally accrue when the

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plaintiff knows, or has reason to know of the injury on which
the action is based, and a plaintiff is deemed to know or have
reason to know at the time of the act itself and not at the
point that the harmful consequences are felt.”

Id. at 122

(internal quotation marks omitted).
Kelly asserts that the statute of limitations began to run
on March 10, 2010, the day he was transferred from SCHC.

Kelly

has averred that he submitted his complaint for filing on or
about February 21, 2013, less than three years after his last
day at SCHC, and he relies on the continuing violation doctrine
to allow events dating back to his first day at the SCHC, July
8, 2008, to be actionable.
The continuing violation doctrine allows the accrual date
in certain § 1983 actions “‘to be delayed until a series of
wrongful acts blossoms into an injury on which suit can be
brought.’”

Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 107

(1st Cir. 2008).
[T]he continuing violation doctrine can apply when a
prisoner challenges a series of acts that together
comprise an Eighth Amendment claim of deliberate
indifference to serious medical needs. . . . To assert
a continuing violation for statute of limitations
purposes, the plaintiff must “allege both the
existence of an ongoing policy of [deliberate
indifference to his or her serious medical needs] and
some non-time-barred acts taken in the furtherance of
that policy.” This test screens out Eighth Amendment
claims that challenge discrete acts of
unconstitutional conduct or that fail to allege acts

5

within the relevant statutory period that are
traceable to a policy of deliberate indifference.
Shomo v. City of N.Y., 579 F.3d 176, 182 (2d Cir. 2009)
(citations omitted).
Assuming that the continuing violation doctrine applies to
Kelly’s claims, the court finds no allegations in this case, and
no evidence in the record, suggesting that any defendant engaged
in any affirmative act less than three years before Kelly filed
this action, that could reasonably be deemed evidence of
deliberate indifference to Kelly’s medical needs.

The last such

affirmative act described in the complaint and in Kelly’s
declaration was Kelly’s meeting with defendant Warren on
December 15, 2009, in which they discussed his seizure disorder,
and, Kelly avers, Warren said that a neurology appointment would
be scheduled.

Three months later, when Kelly was transferred to

another federal facility, Kelly had not seen a neurologist.
Also in March 2010, the SCHC received a letter, dated March
15, 2010, sent by Attorney Robert Fisher on Kelly’s behalf,
stating that Kelly needed treatment for a seizure disorder.
Kelly was a federal pretrial detainee for the duration of his
confinement at the SCHC, and was discharged from the SCHC into
federal Bureau of Prisons custody on March 10, 2010.

There is

no evidence suggesting either that Attorney Fisher’s March 15
letter arrived prior to Kelly’s March 10 transfer, or that any

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SCHC personnel were responsible for the timing of the transfer
and scheduled it in deliberate indifference to Kelly’s serious
medical needs.

There is thus no basis upon which this court

could conclude that defendants took any affirmative act in
furtherance of a policy of deliberate indifference within three
years of the date Kelly filed this action.

As Kelly filed this

action more than three years after December 2009, all of Kelly’s
claims are time-barred.

The court therefore grants the motion

for summary judgment based on the statute of limitations
defense.
II.

Reconsideration of the May 7 Order
This court has discretion to reconsider an interlocutory

order at any time.

See generally Latin Am. Music Co. v. Media

Power Grp., 705 F.3d 34, 40 (1st Cir. 2013).

Dow, Eischen, and

Warren seek reconsideration of the May 7 order directing service
upon Dowaliby and the Doe defendants, based on their contention
that all claims against Dowaliby and the Does are time-barred.
For reasons set forth above with respect to defendants’ motion
for summary judgment, this court concludes that the claims
asserted against Dowaliby and the Does are time-barred.
Moreover, with respect to the claims asserted against the
Doe defendants, plaintiff sought to add those new defendants
(without naming them) more than three years after he was
transferred out of the SCHC.

Dow, Eischen, and Warren have
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shown that any claim asserted against those defendants would
fall outside of the statute of limitations.

Kelly, who bears

the burden of showing that the Rule 15(c) relation back doctrine
applies, waited more than 120 days after this court ordered
service of the original complaint to move to add the Doe
defendants.

See Fed. R. Civ. P. 15(c)(1)(C); see also Smith v.

Chrysler Corp., 45 F. App’x 326, 2002 WL 1899615, at *1 (5th
Cir. 2002) (unpublished decision) (“Even assuming for the sake
of argument that [plaintiff’s] inability to identify [a new
party] as a defendant could somehow count as a “mistake
concerning the identity of the proper party” within the meaning
of Rule 15(c)(3)(B), [plaintiff] would still have to prove that
[new party] had timely notice of her suit.”).

Cf. Coons v.

Indus. Knife Co., 620 F.3d 38, 44 (1st Cir. 2010) (plaintiff had
burden of showing that Massachusetts relation back doctrine
applied after defendant showed that amended complaint asserted
claim outside of statute of limitations).

Kelly has not shown

that any of those as-yet unnamed John and Jane Doe defendants
received notice of the action during that 120-day time period
after this court directed service of the original complaint, or
that any of the Doe defendants knew or should have known that
this action would have been brought against them, but for a
mistake as to the identity of the proper defendant.
Accordingly, Kelly’s claims against the John and Jane Doe
8

defendants would be time-barred, even if this court had found
that the original complaint asserted a timely claim against Dow,
Eischen, and Warren.
Conclusion
For the foregoing reasons, and for reasons stated in the
May 7 order (to the extent that order is not vacated by this
order):
1.

Dow, Eischen, and Warren’s (first) motion for summary

judgment (doc. no. 24) is granted;
2.

Dow, Eischen, and Warren’s motion for partial

reconsideration (doc. no. 40) of this court’s May 7, 2014, order
is granted;
3.

The portions of the May 7 order (doc. no. 38),

granting Kelly’s motion to file the proposed amended complaint,
and to add claims against Dowaliby and the ten John and Jane
Does, are hereby vacated.

The remaining parts of the May 7

order are not vacated.
4.

The motion to amend the complaint (doc. no. 29) is

denied in its entirety, insofar as this court finds that the
claims allowed to proceed by the May 7 order are time-barred.
5.

Dowaliby and the unnamed John and Jane Doe defendants

shall not be served, and the original complaint (doc. no. 1)
shall be deemed the operative complaint in this action.

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6.

The clerk shall redocket the Amended Complaint (doc.

no. 39) as the “Proposed Amended Complaint” and shall crossreference this order in that docket entry.
7.

The pending (second) motion for summary judgment (doc.

no. 31) and motion for an extension of defendants’ expert
disclosure deadline (doc. no. 43) are denied, without prejudice,
as mooted by this order.
8.

The clerk is directed to enter judgment and close the

case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
June 10, 2014
cc:

Howard D. Kelly, pro se
Corey M. Belobrow, Esq.

LBM:nmd

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