Stubbs v. Bryant et al

Filing 35

REPORT AND RECOMMENDATIONS re 21 Defendant's for Judgment on the Pleadings, 17 Plaintiff's Motion for Issuance of Subpoena to Witness Desean Dorsey. IT IS RECOMMENDED that Defendants' motion for judgment on the pleadings 21 be GRANTED, all pending motions 17 be DENIED as MOOT and this case be CLOSED. Objections to R&R due by 1/18/2019. Signed by Magistrate Judge Stephanie K. Bowman on 1/4/2019. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JASON STUBBS,

Case No. 1:17-cv-721

Plaintiff,
Dlott, J.
Bowman, M.J.

vs
PAUL BRYANT, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, an inmate in the Warren Correctional Institution, filed this pro se civil
action against defendants Deputy Paul Bryant and inmate Ivon Scarville. (Doc. 1). This
matter is now before the Court on Defendant Paul Bryant’s motion for judgment on the
pleadings (Doc. 21) and the parties responsive memoranda (Docs. 25, 26).
I. Background and Facts
On October 26, 2017, Plaintiff, an inmate in the Warren Correctional Institution,
filed this pro se civil action against Defendants Deputy Paul Bryant and inmate Ivon
Scarville. (Doc. 1). On January 16, 2018, this Court dismissed all of Plaintiff’s claims
against defendants Deputy Bryant and inmate Scarville, “with the exception of plaintiff’s
Eighth Amendment failure-to protect claim against Bryant.” (Doc. 10, Order and Report
and Recommendation, at Page ID 120).
Plaintiff alleges that he requested protective control during his intake interview.
(Doc. 1 at PageID 5). Plaintiff alleges a deputy sheriff escorted him to a unit where he
was attacked by Scarville, Plaintiff’s cellmate. (Id.). Plaintiff alleges that Scarville asked
Plaintiff questions regarding a shooting Plaintiff was involved in and Plaintiff responded
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by telling him “it was none of his concern.” (Id.). Plaintiff alleges that Scarville then
“violently struck [Plaintiff’s] face breaking [his] jaw in four [separate] places.” (Id.). Plaintiff
alleges that Defendant Bryant “had [knowledge] of this situation, and [defendant Bryant]
failed to protect [Plaintiff].” (Id.). Plaintiff also claims that “I’ve been complaining about my
broken jaw hurting for the last 5 years” and “my problem started happend [sic] in the [sic]
8.4.13.” (Doc.1 at Page ID 8.)
It appears from the complaint that this incident occurred on or about August 4,
2013, more than four years before Plaintiff filed this instant action. Namely, Plaintiff
appears to allege that Defendant Bryant failed to protect him – “8.4.13,” or about “5 years”
ago. (Id.) Plaintiff’s complaint is regarding his “broken jaw,” which he has been
complaining about “hurting for the last five years.” His “problem started happened [sic] in
the 8.4.13.” As such, Defendants contend that this matter should be dismiss as a matter
of law as untimely. The undersigned agrees.
II. Defendants motion for Judgment on the Pleadings is well-taken
Under Fed. R. Civ. P. 12(c), “[a]fter the pleadings are closed--but early enough not
to delay trial--a party may move for judgment on the pleadings.” In ruling on a motion for
judgment on the pleadings, the court must accept all the factual allegations in the
complaint as true. United States v. Moriarty, 8 F.3d 329, 332 (6th Cir. 1993). “The motion
is granted when no material issue of fact exists and the party making the motion is entitled
to judgment as a matter of law.” Id., citing Paskvan v. City of Cleveland Civil Serv.
Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991).
Plaintiff’s civil rights complaint is governed by Ohio’s two-year statute of limitations
applicable to personal injury claims. See Browning v. Pendleton, 869 F.2d 989, 992 (6th

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Cir. 1989) (holding that the “appropriate statute of limitations for 42 U.S.C. § 1983 civil
rights actions arising in Ohio is contained in Ohio Rev. Code § 2305.10, which requires
that actions for bodily injury be filed within two years after their accrual”); see also Wallace
v. Kato, 549 U.S. 384, 387 (2007) (and Supreme Court cases cited therein) (holding that
the statute of limitations governing § 1983 actions “is that which the State provides for
personal-injury torts”); Zundel v. Holder, 687 F.3d 271, 281 (6th Cir. 2012) (“the settled
practice ... to adopt a local time limitation as federal law if it is not inconsistent with federal
law or policy to do so” is applicable “to § 1983 actions and to Bivens actions because
neither the Federal Constitution nor the § 1983 statute provides timeliness rules
governing implied damages”) (internal citation and quotation marks omitted).
Here, Plaintiff’s claims are governed by the two-year statute of limitations because
it was a § 1983 civil rights action arising out of events that occurred in Ohio. Plaintiff’s
complaint was filed on October 26, 2017. Therefore, any events alleged to have occurred
before October 26, 2015, are untimely. As noted above, Plaintiff claims Defendant Bryant
failed to protect him – “8.4.13,” or about “5 years” ago. (Id.) Plaintiff’s complaint is
regarding his “broken jaw,” which he has been complaining about “hurting for the last five
years.” His “problem started happened [sic] in the 8.4.13.” Accordingly, Plaintiff’s Eighth
Amendment failure-to-protect claim against Defendants should be dismissed as untimely
because it is outside the two-year statute of limitations period.

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III. Conclusion
For these reasons, is therefore RECOMMENDED that Defendants’ motion for
judgment on the pleadings (Doc. 21) be GRANTED, all pending motions (Doc. 17) be
DENIED as MOOT and this case be CLOSED.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JASON STUBBS,

Case No. 1:17-cv-721

Plaintiff,
Dlott, J.
Bowman, M.J.

vs
PAUL BRYANT, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on
timely motion by either side for an extension of time. All objections shall specify the
portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in
support of the objections. A party shall respond to an opponent’s objections within
FOURTEEN DAYS after being served with a copy of those objections. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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