Ornelas v. City of Manchester, NH et al

Filing 98

ORDER denying 70 Motion to Dismiss. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Fernando Ornelas
v.

Civil No. 14-cv-394-LM
Opinion No. 2017 DNH 104

City of Manchester, et al

O R D E R
Fernando Ornelas brings suit against the City of
Manchester, the Manchester Police Department, Hillsborough
County, Elliot Hospital, the Hillsborough County of Department
of Corrections, and several employees of those entities alleging
claims arising out of serious injuries that he sustained while
in their custody.1

Elliot Hospital moves to dismiss Ornelas’s

medical injury claim against it, arguing that the claim is
barred by New Hampshire’s three-year statute of limitations on
personal actions.

Ornelas objects.
Standard of Review

Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable

Ornelas has voluntarily dismissed his claims against
Envision Healthcare, Inc., the Mental Health Center of Greater
Manchester, Quentin Turnbull, Emily Yergeau, and David J. Mara.
Doc. no. 93.
1

inferences in the plaintiff’s favor, and “determine whether the
factual allegations in the plaintiff's complaint set forth a
plausible claim upon which relief may be granted.” Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
(citations and internal quotation marks omitted).

A claim is

facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. 662, 678 (2009).

Ashcroft v.

The court “may grant a motion

to dismiss based on a defendant's affirmative defense of a
statute of limitations ‘when the pleader's allegations leave no
doubt that an asserted claim is time-barred.’”

DeGrandis v.

Children's Hosp. Boston, 806 F.3d 13, 16–17 (1st Cir. 2015)
(quoting LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507,
509 (1st Cir. 1998)).
Background
I.

Factual Background
On October 15, 2013, Ornelas was admitted to Elliot

Hospital’s emergency room to be evaluated for possible head
trauma following a car accident.

Ornelas, who had a known

mental health condition, was disoriented.

On his sister’s

request, mental health professionals evaluated Ornelas at the
hospital.

Those professionals diagnosed Ornelas with bipolar

2

disorder and, with his sister’s consent, petitioned to have
Ornelas involuntarily committed in a psychiatric hospital under
state law.2

According to the petition completed by medical

personnel, Ornelas was “displaying paranoia, hallucinations and
mood swings, as a result of mental illness, sufficient to pose a
likelihood of danger to himself or others.”

Doc. no. 63 at

¶ 28.
While waiting for a bed to become available at the
psychiatric hospital, Ornelas remained in the secured mental
health section of Elliot Hospital’s emergency room.

While

there, Ornelas had an altercation with Lawrence Bolduc, a
hospital security guard.

During that altercation, Ornelas

suffered severe head and facial injuries.
Because Bolduc wanted to press charges, a call was placed
to the Manchester Police Department.

Officers from the

department decided to take Ornelas to the police station and
book him on charges for simple assault.

Before being taken to

the police station, however, the police officers requested that
Elliot Hospital staff examine Ornelas to determine whether he
was stable enough to be discharged.

Two of the mental health professionals that examined
Ornelas were Yergeau and Turnbull, both of whom worked for the
Mental Health Center of Greater Manchester. As discussed above,
Ornelas has voluntarily dismissed those defendants from this
action.
2

3

An Elliot Hospital physician ordered a physical examination
and diagnostic studies for Ornelas.

Based on those tests,

Elliot Hospital physicians determined that Ornelas had sustained
significant injuries but was nevertheless stable enough to be
discharged.

The emergency room notes of the physician that

examined Ornelas stated that he was complaining of facial pain,
a headache, dental and jaw pain, and had a neck contusion.

In

Ornelas’s discharge papers, Elliot Hospital staff members wrote
that officers should “[r]eturn to emergency department as soon
as possible if persistent vomiting, confusion, weakness to arms
or legs or any other concerns.” Doc. no. 63 at ¶ 53.
Ornelas was discharged into the Manchester Police
Department’s custody at around 10:45 p.m. on October 16, 2013.
After being booked, Ornelas was then placed in the custody of
the Hillsborough County Department of Corrections and was taken
to the Valley Street Jail.

At the jail, Ornelas acted confused

and could be heard by guards hitting the cell door with his
forehead and running back and forth in his cell.

After

unsuccessfully attempting to get Ornelas to calm down, officers
decided to forcibly extract Ornelas from his cell.
Three officers entered Ornelas’s cell and eventually
restrained him.

During the extraction, Ornelas was slammed to

the concrete floor and hit his head on the toilet.

Other

inmates heard Ornelas screaming and heard “sounds consistent
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with a person being struck.”

See doc. no. 63 at ¶ 142-44.

Following the extraction, Ornelas’s cell contained visible pools
of blood on the floor.
After being removed from his cell, Ornelas was placed in a
restraint chair.

A nurse later noticed that Ornelas was

unresponsive and determined that he needed emergency medical
care.

A staff member at the Valley Street Jail called an

ambulance to return Ornelas to Elliot Hospital.

Emergency

personnel arrived at the Valley Street Jail at 9:10 a.m. on
October 17 and returned Ornelas to the Elliot Hospital emergency
room.

Once at the hospital, physicians determined that Ornelas

had severely fractured his cervical vertebrae and was paralyzed.
II. Procedural Background
Ornelas brought suit on September 11, 2014, alleging claims
against several defendants, including claims for general
negligence and negligent infliction of emotional distress
against Elliot Hospital.

Although Ornelas brought claims under

RSA 507-E, New Hampshire’s medical injury statute, against
several defendants he did not bring such a claim against Elliot
Hospital.3

R.S.A. 507-E sets forth the procedures for bringing an
“action for medical injury,” which is defined as “any adverse,
untoward or undesired consequences arising out of or sustained
in the course of professional services rendered by a medical
care provider.” The definition of a claim for medical injury
3

5

In support of his negligence claim, Ornelas alleged that
Elliot Hospital had failed to, among other things, provide
Ornelas proper psychological evaluations, “examine properly and
diagnose” Ornelas, and “properly evaluate and recommend the
appropriate discharge instructions and follow-up with the
patient.”

Doc. no. 1 at ¶ 324.

Ornelas’s original complaint

did not contain any specific allegation of wrongdoing or
negligence arising out of his second visit to Elliot Hospital.
Rather, Ornelas alleged that he had already suffered the
cervical fracture and was paralyzed when he returned to Elliot
Hospital.

Id. at 45 (“Mr. Ornelas is returned to Elliot

Hospital paralyzed and unresponsive from Hillsborough County
Department of Corrections.”).

Based on this theory, Ornelas

alleged that he “suffered an injury sufficient to cause a
fracture of his cervical spine” during either his first visit to
Elliot Hospital, his booking at the Manchester Police
Department, or his detention at Valley Street Jail.

See id. at

¶¶ 208-09.
On January 26, 2017, Ornelas moved for leave to amend his
complaint.

In that motion, Ornelas asserted that during

discovery he had obtained additional information demonstrating

includes claims resulting from the negligent provision of such
services. Id.
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that Ornelas was not paralyzed when he arrived at Elliot
Hospital, the second time, but rather had become paralyzed
there.

Ornelas further asserted that based on that information,

it was his position that he “suffered a cervical fracture which
was unstable and which became progressively worse until the
fracture caused complete paralysis.”

Doc. no. 62-1 at 10.

Because no defendants objected, the court granted Ornelas’s
motion for leave to amend.
Ornelas’s amended complaint, which was filed on February
10, 2017, contained new factual allegations about his care at
Elliot Hospital after he was returned to the emergency room.
Specifically, the amended complaint provided that:
Upon arrival at the Elliot Hospital, Mr. Ornelas did
not have a neck brace on and none was placed until
after he was paralyzed. According to the hospital
records, his GCS test showed he was not paralyzed upon
his arrival at the hospital but did become paralyzed
while at the hospital. Thereafter, it was confirmed
that Mr. Ornelas had a severe cervical fracture that
had gone undiagnosed and untreated by all persons
responsible for his care.
Doc. no 63 at ¶ 200.

In addition to that factual allegation,

the amended complaint added a claim for medical injury under RSA
507-E against Elliot Hospital for providing negligent care
during both of Ornelas’s visits.

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Discussion
Elliot Hospital moves to dismiss Ornelas’s medical injury
claim, arguing that Ornelas brought that claim after New
Hampshire’s three-year statute of limitations expired.

In

response, Ornelas contends that his medical injury claim is
based on recently-discovered evidence and thus is not barred by
the statute of limitations.

Ornelas further argues that the

medical injury claim is permissible because it relates back to
his original pleading.4
I.

Statute of Limitations
R.S.A. 508:4, I, the applicable statute of limitations,

provides that “all personal actions, except actions for slander
or libel, may be brought only within 3 years of the act or
omission complained of.”

Here, there is no dispute that the

acts causing Ornelas’s injuries occurred at some point on or
before October 17, 2013.

Because Ornelas filed his amended

complaint in February 2017, he did not bring his claim within
the three years required under RSA 508:4, I.

Ornelas also contends that Elliot Hospital waived any
statute of limitations objections to his medical injury claim
when it failed to object to his motion to amend his complaint.
That theory, however, is incorrect. Carlos v. York Cty., No.
1:15-CV-01994, 2016 WL 1706163, at *2 (M.D. Pa. Apr. 27, 2016);
Pessotti v. Eagle Mfg. Co., 774 F. Supp. 669, 677 (D. Mass.
1990), aff'd, 946 F.2d 974 (1st Cir. 1991).
4

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Ornelas contends, however, that his medical injury claim is
not time-barred based on either the discovery rule exception to
the statute of limitations or the relation-back doctrine.

In

response, Elliot Hospital contends that neither the discovery
rule nor the relation back doctrine applies here.
II. Discovery Rule
Under RSA 508:4, the limitations period is tolled until the
plaintiff discovers, or reasonably should have discovered, the
injury and its causal connection to the negligent or wrongful
act.

Lamprey v. Britton Const., Inc., 163 N.H. 252, 256–57

(2012).

“[A] plaintiff need not be certain of this causal

connection; the possibility that it existed will suffice to
obviate the protections of the discovery rule.”

Beane v. Dana

S. Beane & Co., P.C., 160 N.H. 708, 713 (2010).
In this case, Ornelas presumably knew that he had been
treated in Elliot Hospital after being found unresponsive at the
Valley Street Jail.

This fact likely alerted Ornelas to the

possibility that Elliot Hospital’s medical care was a cause of
his injuries.

Nevertheless, the court need not determine

whether the discovery rule applies, an issue which could turn on
factual inquiries, because it concludes that Ornelas’s claim for
medical injury against Elliot Hospital relates back to his
original pleading.

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III. Relation Back
Under the relation-back doctrine, a plaintiff may avoid the
preclusive effect of a statute of limitations if his complaint
relates back to a prior, timely-filed complaint.

See Turner v.

United States, 699 F.3d 578, 585 (1st Cir. 2012); Connectu LLC v.
Zuckerberg, 522 F.3d 82, 94 (1st Cir. 2008).

Under Federal Rule

of Civil Procedure 15(c), an amended complaint adding an additional
claim relates back to the original complaint if either “(A) the
law that provides the applicable statute of limitations allows
relation back” or “(B) the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out—
or attempted to be set out—in the original pleading.”
Civ. P. 15(c)(1)(A)-(B).

Fed. R.

The choice between these two provisions

is “a one-way ratchet, meaning that a party is entitled to invoke
the more permissive relation back rule.” See Coons v. Indus. Knife
Co., 620 F.3d 38, 42 (1st Cir. 2010) (analyzing relation back of
an amendment adding new parties); Morel v. DaimlerChrysler AG, 565
F.3d 20, 26 (1st Cir. 2009).
Here, it is undisputed that Ornelas’s original complaint
was filed within the applicable statute of limitations.

Ornelas

contends that his medical injury claim relates back to that
complaint under both New Hampshire and federal law.

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A. Federal Rule
Under the conduct, transaction, or occurrence test, “[s]o
long as the original and amended petitions state claims that are
tied to a common core of operative facts, relation back will be
in order.”

Frederick v. State of New Hampshire, No. 14-CV-403-

SM, 2016 WL 4382692, at *7 (D.N.H. Aug. 16, 2016) (quoting Mayle
v. Felix, 545 U.S. 644 (2005)).

An amended complaint adding a

new claim after the statute of limitations has expired will not
relate back where the amendment “is so substantial that it
cannot be said that [the] defendant was given adequate notice of
the conduct, transaction, or occurrence that forms the basis of
the claim or defense.”

O'Loughlin v. Nat’l R. Passenger Corp.,

928 F.2d 24, 26 (1st Cir. 1991) (internal quotation marks
omitted).
Accordingly, courts deny amendments “to assert a claim
which was not even suggested in the original complaint.”

Id.

If, however, the original complaint “gives fair notice of the
general fact situation out of which the claim or defense arises,
an amendment which merely makes more specific what has already
been alleged will relate back.”

Id. (quoting 6A Wright, Miller

& Kane, Federal Practice and Procedure, § 1497 (2 ed. 1990)).
“This analysis is directed to conduct rather than causes of
action and new legal theories may relate back to the original
filing where . . . there is a shared basis in factual
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circumstances.”

Iconics, Inc. v. Massaro, No. 11-11526-DPW,

2016 WL 199407, at *5 (D. Mass. Jan. 15, 2016) (internal
quotation marks and citations omitted).
Ornelas asserts that the medical injury claim relates back
because his original complaint provided notice that he was
asserting such a claim against Elliot Hospital.

In response,

Elliot Hospital contends that Ornelas’s medical injury claim
does not arise from the same conduct, transaction, or occurrence
because it is premised on different facts—Ornelas’s return to
its emergency room—than those asserted in the original
complaint.
1. Medical Injury Claims Arising Out of First Visit
Although Ornelas’s medical injury claim does rely on new
allegations concerning his return to Elliot Hospital, it also
expressly references the treatment he received during his first
visit.

See doc. no. 63 at ¶ 346 (“With respect to Elliot

Hospital, it was responsible for the negligent care provided by
its servants, agents and/or employees including Ms. Yergeau and
Dr. Turnbull under theories of actual and/or apparent
agency.”)(emphasis added).

In his original complaint, Ornelas

plainly alleged that Elliot Hospital’s treatment during his
first visit constituted medical negligence.

For example,

Ornelas alleged that Elliot Hospital failed to properly examine
12

and diagnose him, failed to provide appropriate psychological
care, and failed to properly evaluate him before his discharge.
Doc. no. 1 at ¶ 324.

Therefore, regardless of whether Ornelas

asserted a formal claim under RSA 507-E, his original complaint
in substance set out or attempted to set out a transaction or
occurrence based on Elliot Hospital’s alleged negligent care.
In fact, Elliot Hospital has recognized from the outset of
this litigation that Ornelas’s claims against it included claims
for medical injury.

As Ornelas points out, Elliot Hospital’s

answer to the original complaint included an affirmative defense
in which it asserted that the claims against Elliot Hospital
could not proceed “before a N.H. Medical Malpractice Screening
Panel hearing occurs, as Plaintiff’s claims against Elliot
Hospital include claims for ‘medical injury.’”
44.

Doc. no. 48 at

Accordingly, Elliot Hospital cannot now be surprised that

Ornelas has asserted a medical injury claim against it.
Therefore, to the extent Ornelas’s medical injury claim is
based on Elliot Hospital’s treatment during his first visit, it
relates back to the original complaint.
2. Medical Injury Claims Arising Out of Second Visit
Ornelas’s amended complaint also asserts a medical injury
claim based on new allegations that Elliot Hospital failed to
properly stabilize his neck upon his return to its emergency

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room.

Ornelas contends that these new allegations relate back

because they fall within the general fact pattern alleged in his
original pleading.

In response, Elliot Hospital argues that the

allegations arise from a different occurrence because they rely
on facts that differ in both time and type than those alleged in
the original pleading.
In support, Elliot Hospital relies on Mayle v. Felix, 545
U.S. 644 (2005).

In Mayle, the plaintiff filed a petition for a

writ of habeas corpus, alleging a Sixth Amendment claim based on
the government’s introduction of out-of-court testimony during
his criminal trial.

Id. at 651.

After the relevant statute of

limitations expired, the plaintiff amended his petition to
allege a Fifth Amendment claim based on the government’s
introduction of statements that he made during a pretrial,
police interrogation.

Id. at 651-52.

On appeal, the Supreme

Court held that the amended petition did not relate back to the
original petition because the new Fifth Amendment claim arose
from a different occurrence or transaction.

Id. at 664.

In

doing so, the court concluded that the plaintiff’s new claim was
not tied to a “common core of operative facts” because the
essential predicate of that claim, the police interrogation,
depended on facts that differed in type and time from those
alleged in the original complaint.

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Id. at 659-61, 664.

Elliot Hospital contends that Mayle bars relation back here
because Ornelas has alleged different conduct as the cause of
his paralysis.

The court disagrees.

As an initial matter, the

First Circuit has suggested that Mayle sets forth a more
stringent standard for relation back in habeas petitions.
United States v. Ciampi, 419 F.3d 20, 23 (1st Cir. 2005) (“[I]n
the habeas corpus context, the Rule 15 ‘relation back’ provision
is to be strictly construed, in light of ‘Congress' decision to
expedite collateral attacks by placing stringent time
restrictions on [them].’” (quoting Mayle, 545 U.S. at 657)); see
also Turner, 699 F.3d at 585.5

More importantly, however, Mayle

itself does not hold that each distinct alleged act of
wrongdoing underlying a claim is a separate transaction or
occurrence for Rule 15 purposes.
That is evident from the Mayle court’s conclusion that its
decision does not conflict with Tiller v. Atlantic Coast Line R.
Co., 323 U.S. 574, 580-81 (1945).

In Tiller, a railroad car

struck and killed a railroad worker, whose wife sued on his
behalf.

Id. at 575.

She initially alleged several negligent

acts and, after the statute of limitations had expired, amended
her complaint to allege a different theory of negligence based
But see Anderson v. Bondex Int'l, Inc., 552 F. App'x 153,
157 (3d Cir. 2014) (concluding that “the Supreme Court's
analysis in Mayle was consistent with—not more exacting than—its
application of Rule 15(c) in other contexts”).
5

15

on the railroad’s failure to equip the locomotive with a rear
light.

Id. at 575-77, 581.

The Tiller court held that the new

claim related back to the original pleading, concluding that
both claims “related to the same general conduct, transaction
and occurrence which involved the death of the deceased.”
at 581.

Id.

The court further reasoned that “[t]here is no reason

to apply a statute of limitations when, as here, the respondent
has had notice from the beginning that petitioner was trying to
enforce a claim against it because of the events leading up to
the death of the deceased.”

Id.

The Mayle Court explained that although the amended
pleading in Tiller “invoked a legal theory not suggested by the
original complaint and relied on facts not originally asserted,”
it related back to the original pleading because there “was but
one episode-in-suit, a worker’s death attributed from the start
to the railroad’s failure to provide its employee with a
reasonably safe place to work.”

Mayle, 545 U.S. at 660.

The

Mayle court further explained that unlike the plaintiff in its
case, the plaintiff in Tiller “based her complaint on a single
‘occurrence,’ an accident resulting in her husband’s death.”
Id.
Based on similar reasoning, courts have concluded that new
factual allegations raised in an amended complaint will relate
back when they are closely tied to the general factual situation
16

alleged in the original complaint.

See Anderson v. PAR

Electrical Contractors, Inc., 318 F.R.D. 640, 644-45 (D. Kan.
2017) (finding relation back where new factual allegations bore
“more than an ‘incidental relationship’” and occurred nine days
after events alleged in original complaint); Hernandez v. City
of Chicago, No. 16 C 8875, 2016 WL 6948386, at *1 (N.D. Ill.
Nov. 28, 2016) (“An amendment relates back if it ‘alleges events
close in time and subject matter to those previously alleged,
and if they led to the same injury.’”) (quoting In re Safeco
Ins. Co. of Am., 585 F.3d 326, 331 (7th Cir. 2009)); Burnside v.
Walters, No. 09-CV-2727-JDT-TMP, 2015 WL 5604186, at *4 (W.D.
Tenn. Aug. 6, 2015) (“An amendment relates back if the new
claims constitute added events leading up to the same injury or
an added theory of liability for the same occurrence.”)
(internal quotation marks omitted), report and recommendation
adopted, No. 09-2727-JDT-TMP, 2015 WL 5604214 (W.D. Tenn. Sept.
23, 2015); Vigilant Ins. Co. v. Servco Oil, Inc., No. 3:09-CV829 (JCH), 2010 WL 2710479, at *4 (D. Conn. July 7, 2010)
(finding relation back because like Tiller, plaintiff “only
altered its underlying theory of how [defendant’s] negligence
caused the oil leak on the Serinos' property.”).
In this case, the occurrence at issue is the fracture of
Ornelas’s neck, the resulting paralysis, and the events that led

17

to those conditions.

In his original complaint, Ornelas alleged

that Elliot Hospital’s negligence, including its negligent
provision of medical care, was in part responsible for his
injuries.

Just as in Tiller, Ornelas now alleges other conduct

as an alternative cause of his injuries.
Those allegations relates back to the original complaint
because they are tied to the common core of operative facts
alleged therein.

The new allegations concern the same injuries

and involve the same type of conduct by Elliot Hospital—the
negligent provision of medical care—that was alleged in the
original complaint.

Moreover, the new allegations share a close

temporal proximity to the facts originally alleged.

Ornelas’s

return to Elliot Hospital occurred within 24 hours of his
initial discharge from that institution and nearly
contemporaneously with the other allegations of misconduct
alleged in the original complaint.

Given these facts and that

the original complaint gave notice that Ornelas was returned to
and treated in its emergency room, Elliot Hospital cannot now
claim that it was unaware of the general fact situation from
which these new allegations arise.
Accordingly, the RSA 507-E claims alleged against Elliot
Hospital relate back to the original pleading in this action.

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B. New Hampshire Rule
Because the court concludes that the medical injury claim
relates back under the federal test it need not assess whether
it relates back under New Hampshire’s standard.
Conclusion
For the foregoing reasons, Elliot Hospital’s motion to
dismiss (doc. no. 70) is denied.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge

June 5, 2017
cc:

All counsel of record.

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