Anderson v. Less et al

Filing 17

Order: Because Anderson failed to identify Un-Named #2 by November 1, 2014, as directed by the Sixth Circuit, his claim against Un-Named #2 is dismissed. Having dismissed the only remaining claim in the complaint, the Court directs the Clerk t o close this case. Further, the Court certifies, pursuant to 28 U.S.C. Section 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. Section 2253(c); Fed. R. App. P. 22(b). (Related Doc # 1 , 14 , 15 ). Judge Sara Lioi on 12/3/2014. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

EMERSON M. ANDERSON,

PLAINTIFF,
vs.
DAVID LESS, et al,

DEFENDANTS.

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CASE NO. 1:13cv1630

JUDGE SARA LIOI

ORDER

On July 26, 2013, pro se plaintiff Emerson M. Anderson filed a complaint in
the above titled action seeking damages and injunctive relief pursuant to 42 U.S.C. § 1983
against seven defendants: David Less, medical personnel at the Ohio Department of
Rehabilitation and Correction (“ODRC”); Gina Maddox and Mona Parks, registered nurses
at ODRC; Ron Pawlus, a staff member at ODRC; and “Un-Named #1,” “Un-Named #2”
and “Un-Named #3,” medical staff at ODRC. (Doc. No. 1 [“Compl.”] at 3-6.) Anderson
alleged that defendants denied him medical treatment in violation of his rights under the
Eighth and Fourteenth Amendments. (Id. at 2.)
The Court dismissed Anderson’s complaint upon initial screening pursuant
to 28 U.S.C. § 1915(e). (Doc. No. 7.) Anderson appealed. On September 19, 2014, the
Sixth Circuit affirmed in part, reversed in part, and remanded the case for further
proceedings. (Doc. No. 14 [“Opinion”].) The Sixth Circuit found that Anderson stated a
claim for deliberate indifference against Un-Named #2 only. (Opinion at 123-25.) With
respect to the remaining defendant—Un-Named #2—the Sixth Circuit stated:

We note that although this court’s authority permits a
plaintiff to name an unidentified “Jane Doe” defendant as a
placeholder, Brown v. Owens Corning Inv. Review Comm.,
622 F.3d 564, 572 (6th Cir. 2010), those defendants are
entitled to notice that they are subject to suit within the
applicable limitations period, Smith v. City of Akron, 476 F.
App’x 67, 69–70 (6th Cir. 2012). Civil rights suits have a
two-year statute of limitations in Ohio. Banks v. City of
Whitehall, 344 F.3d 550, 553 (6th Cir. 2003). Because the
alleged violation occurred November 1, 2012, Anderson must
identify Un-Named #2 before November 1, 2014 in order to
preserve his claim against her.

(Id. at 125.)
On October 1, 2014, Anderson filed in the Sixth Circuit a “Petition For
Panel Rehearing” (Sixth Circuit Court of Appeals Case No. 14-3167, Doc. No. 19), a
“Motion For Extension of Time to Provide For Name of Un-Named Defendants” (Id., Doc.
No. 20), and a “Motion for Discovery to Provide For Name of Un-Named Defendants” (Id.,
Doc. No. 21). On November 4, 2014, the Sixth Circuit denied Anderson’s “petition for
rehearing and pending motions[.]” (Id., Doc. No. 22.)
To date, Anderson has not identified Un-Named #2. This Court’s reading of
the Sixth Circuit’s Opinion on Remand required Anderson to identify un-Named # 2 before
November 1, 2014. Because Anderson failed to identify Un-Named #2 by November 1,
2014, as directed by the Sixth Circuit, his claim against Un-Named #2 is dismissed. Having
dismissed the only remaining claim in the complaint, the Court directs the Clerk to close
this case. Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal
from this decision could not be taken in good faith, and that there is no basis upon which to

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issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.

Dated: December 3, 2014
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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