Wilder v. Doctor John Doe #1 et al

Filing 14

ORDER adopting Report and Recommendations re 9 Report and Recommendations. Case is Dismissed. Signed by Judge James L Graham on 5/8/12. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Gary D. Wilder,

:

Plaintiff,

:

v.

:
:

Terry Collins, et al.,
Defendants.

Case No. 2:12-cv-0064
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

:
OPINION AND ORDER

This is a civil rights case filed under 42 U.S.C. §1983.
The plaintiff is Gary D. Wilder, a state prisoner.

The complaint

was referred to a Magistrate Judge for initial screening (which
is required in all prisoner-initiated litigation involving claims
against governmental officials) under 28 U.S.C. §1915A.

The

Magistrate Judge has recommended that the case be dismissed as
barred by the applicable two-year statute of limitations, and for
other reasons as well.
recommendation.

Mr. Wilder objects to that

For the following reasons, the Court overrules

his objections and orders that the case be dismissed.
I.
When objections are received to a Magistrate Judge's Report
and Recommendation on a dispositive matter, the assigned District
Judge “shall make a de novo determination ... of any portion of
the Magistrate Judge's disposition to which specific written
objection has been made ....”

Fed.R.Civ.P. 72(b).

After review,

the District Judge “may accept, reject, or modify the recommended
decision, receive further evidence, or recommit the matter to the
Magistrate Judge with instructions.”
636(b)(1)(B).

Id.; see also 28 U.S.C. §

General objections are insufficient to preserve

any issues for review – “[a] general objection to the entirety of
the Magistrate's report has the same effects as would a failure

to object.”

Howard v. Secretary of Health and Human Servs., 932

F.2d 505, 509 (6th Cir. 1991).
II.
This case is subject to 28 U.S.C. §1915A, part of the Prison
Litigation Reform Act.

That statutory section requires the Court

to review any complaint filed by a prisoner in which redress is
sought from “a governmental entity or officer or employee of a
governmental entity” and to dismiss the case if the prisoner’s
complaint “is frivolous, malicious, or fails to state a claim
upon which relief may be granted ....”

The Report and

Recommendation points out that “‘[a] district court is required
to screen all civil cases brought by prisoners, regardless of
whether the inmate paid the full filing fee, is a pauper, is pro
se, or is represented by counsel as the statute does not
differentiate between various civil actions brought by
prisoners.’
1997).”

McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir.

Report and Recommendation, Doc. No. 9, at 1-2.

Mr.

Wilder does not take issue with this statement of the law, and
the Court adopts it as the appropriate standard under which to
determine if Mr. Wilder should be allowed to proceed with this
case.
Mr. Wilder also does not object to the Magistrate Judge’s
summary of what the complaint alleges.

The most significant set

of facts which Mr. Wilder alleges are those detailing the time
when various events occurred.

These are significant because the

primary reason why dismissal of this case is being recommended is
that the statute of limitations has run on Mr. Wilder’s claims.
In his complaint, and again in his objections, Mr. Wilder
acknowledges that his current medical problems began on April 1,
2007 when he experienced a sudden onset of severe pain in his
left leg.

According to him, nothing was done about that problem

for over a year.

On April 2, 2008, however, prison officials
-2-

sent Mr. Wilder to the Corrections Medical Center for an
ultrasound test, which revealed two clots in that leg which had
caused part of his leg tissue to die.
left leg was amputated above the knee.

Shortly thereafter, his
He was sent back to the

Corrections Medical Center around May 1, 2008.

All of these

events occurred more than two years prior to January 2012, which
is when Mr. Wilder submitted his civil rights complaint to the
Court.
As more fully discussed below, Mr. Wilder argues that
because he continues to experience problems arising from the
amputation of his leg, this case is a “continuing violation” case
which removes it from the operation of the statute of
limitations.

He also alleges in his complaint, and repeats in

his objections, that he has suffered an injury within the twoyear limitations period - namely, some time in 2010 (the precise
date is not set forth in the complaint, but in his objection, Mr.
Wilder states this happened on June 15, 2010) he fell and broke
his hip.

He attributes that fall to ongoing problems with the

prosthesis he was given after the amputation.

He also claims

that he has been unable to walk properly, and is confined to a
wheelchair most of the time, because he was not given any
physical therapy or other proper care following the hip fracture.
Because these latter events did occur within two years of his
filing suit, the Court will discuss them separately from the
events which occurred earlier.
III.
In Browning v. Pendleton, 869 F.2d 989 (6th Cir. 1989), the
Court of Appeals determined that the statute of limitations
applicable to claims arising under 42 U.S.C. §1983 is the
two-year statute of limitations found in Ohio Revised Code
§2305.10.

The first question the Court must answer is whether

Mr. Wilder has adequately alleged any facts which would allow him
-3-

to pursue claims for any events which occurred prior to January
2010, including the alleged improper failure to diagnose his
blood clots in 2007, the failure to treat that condition for the
next year, the subsequent amputation of his leg, or any problems
he experienced post-amputation in either 2008 or 2009.

The

answer to that question is clearly no.
In a filing made with his complaint, Mr. Wilder argued that
the running of the statute of limitations should be tolled for
equitable reasons.
theory.

The Report and Recommendation rejected that

Applying a five-factor test derived from Truitt v.

County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998), the
Magistrate Judge concluded that neither the failure of Mr.
Wilder’s attorney to file an action in a timely fashion despite
Mr. Wilder’s best effort to have him do so, or the fact of Mr.
Wilder’s imprisonment, tolled the running of the statute of
limitations.

The latter factor may toll the running of the

statute against someone in prison, but not in favor of the
imprisoned party.

Ohio Rev. Code §2305.15(B).

And as the Report

and Recommendation points out, both state and federal courts have
rejected the proposition that negligence or inaction on the part
of an attorney hired by the injured party can save a claim from
the statute of limitations.

See, e.g., Todd v. Baker, 2007 WL

188740, *2 (S.D. Ohio January 22, 2007); Byers v. Robinson, 2008
WL 4328189, *13-14 (Franklin Co. App. Sept. 23, 2008).

Those

legal conclusions are correct, and Mr. Wilder does not make any
compelling argument to the contrary.

The Court will therefore

adopt the Report and Recommendation’s reasoning as it relates to
tolling the statute of limitations.
In his objection, however, Mr. Wilder presses a different
theory as to why the statute of limitations does not bar his
claims.

He asserts that under the “continuing violation”

doctrine, as long as, within the applicable limitations period,
-4-

he has suffered from some injury which flows directly from an
earlier constitutional violation committed by the defendants, his
suit based on those earlier violations is timely.

In other

words, he argues that his claim never accrued for limitations
purposes until the last date on which the earlier medical errors
affected him - and that date has not occurred yet, because he
continues to suffer from complications from the amputation of his
leg.

For the following reasons, the Court finds that theory

inapplicable here.
The continuing violation doctrine can apply to §1983 claims.
However, it is fairly limited in the situations to which it
applies.

As the Court of Appeals recently explained,

[A] “continuous violation’ exists if: (1) the
defendants engage in continuing wrongful conduct; (2)
injury to the plaintiffs accrues continuously; and (3)
had the defendants at any time ceased their wrongful
conduct, further injury would have been avoided.”
Hensley v. City of Columbus, 557 F.3d 693, 697 (6th
Cir. 2009)(citations omitted). “A continuing violation
is occasioned by continual unlawful acts, not continual
ill effects from an original violation.” Eidson v.
Tenn. Dep't of Children's Servs., 510 F.3d 631, 635
(6th Cir. 2007) (internal quotation marks and
alteration omitted).
Broom v. Strickland, 579 F.3d 553, 555 (6th Cir. 2009).
Clearly, as it applies to the events of 2007 and 2008 about
which Mr. Wilder complains, those events were all completed in
those years, and there was no continuing wrongful conduct which,
if it ceased, would have avoided the injuries which happened at
that time.

In other words, once Mr. Wilder’s condition was

misdiagnosed (as he alleges), and once his leg was amputated,
that injury was complete; nothing the defendants could have done
after that date would have brought back his leg, or restored him
to the condition he would have been in had the proper diagnoses
and treatment been provided to him back in 2007.
-5-

Thus, to the

extent that any problems he now suffers from not having a leg, or
not having been given either a proper prosthesis or proper
training on how to use it, are attributable to the amputation and
alleged lack of follow-up care which occurred in 2008 or 2009,
such claims accrued in those years and are now time-barred.
This conclusion is buttressed by cases involving the
question of when a cause of action accrues for tortious injury.
In such cases, “[t]he general rule is that a tort cause of action
accrues when there has been a violation of legally protected
interests. See Restatement (Second) of Torts §899, comments c and
e (1977).

This violation usually occurs when the tortious event

is committed.”
Cir. 1987).

Hicks v. Hines, Inc., 826 F.2d 1543, 1544 (6th

In Hicks the plaintiff had been exposed to certain

chemicals in the workplace which eventually led to his developing
bladder cancer.

He filed suit shortly after the cancer was

diagnosed, but well after he experienced other problems from the
chemical exposure, including a period of total blindness.

The

blindness occurred outside the applicable limitations period.
The Court of Appeals held that a cause of action based on the
tortious act accrues when “a legally cognizable but relatively
small injury” occurs, even if the full extent of the injury is
not known until a later date.

Because the plaintiff’s blindness

both resulted from the chemical exposure and occurred more than
three years before he filed suit based on his diagnosis of
bladder cancer, his claim was time-barred.
The present case is indistinguishable from Hicks to the
extent that Mr. Wilder’s claim is based on the alleged
misdiagnosis, amputation, and allegedly improper follow-up care
in 2008 and 2009.

Mr. Wilder unquestionably suffered a legally

cognizable injury as a result of those events, and the fact that
the consequences of those injuries persist to this day does not
alter the fact that his claim of deliberate indifference to
-6-

serious medical needs accrued at the time the injuries occurred.
See also Hughes v. Vanderbilt University, 215 F.3d 543 (6th Cir.
2000)(holding that a plaintiff who alleged ongoing injury from
having ingested radioactive iron in 1945, including weight loss,
blood problems, and tumors, filed suit too late because she
waited until more than one year (the statute of limitations for
§1983 actions in Tennessee) after she reasonably could have
discovered the alleged wrongful acts of the defendants to file
her complaint); cf. Tausch v. Riverview Health Inst., 187 Ohio
App.3d 173, 183 (Montgomery Co. 2010)(cause of action for medical
malpractice accrued when “a ‘cognizable event’ occurred that put
the party on notice that his injury is related to a specific
medical procedure and of the need to pursue his possible
remedies”).

The amputation of his leg was a “cognizable event”

that certainly put Mr. Wilder on notice that his injury, that is,
the loss of his leg, related to the claimed improper actions of
prison officials in diagnosing and treating his blood clots, and
he actually retained an attorney to pursue this exact claim
within the limitations period.

Thus, there is simply no merit to

his argument that his continuing medical difficulties stemming
from the defendants’ alleged unconstitutional actions in 2007 and
2008 have prevented his §1983 claim for deliberate indifference
from accruing.

That claim accrued prior to January 2010, and his

complaint, filed in January 2012, is untimely as to the diagnosis
and treatment of his blood clots, the amputation of his leg, and
any lack of proper follow-up care which occurred before January
2010.
IV.
Mr. Wilder is correct, however, in his assertion that if he
received any type of substandard medical care after January 2010,
a §1983 claim based on that care would not be time-barred.

As

noted above, he asserts that he fell and broke his hip in June
-7-

2010, and that but for the improper care he was receiving at that
time, this injury would not have occurred.

While such a claim

(assuming that it based on alleged deliberate indifference to a
serious medical need) is not barred by the statute of
limitations, any such claim in the complaint is subject to
dismissal for other reasons.
The complaint is fairly short on allegations about the June
2010 incident.

It states that after Mr. Wilder was transferred

from the Corrections Medical Center to the Hocking Correctional
Facility, where he now resides, he “fell three (3) times trying
to learn to walk on his own.”

Complaint, Doc. 2, at 5.

The

complaint does not allege when the transfer to Hocking took
place.

It then states that “the last time Petitioner fell was in

2010 when he fractured his right hip and has now a steel plate
with two screws on the inside of his right hip.

Because he had

no physical therapy at HCF to this day I can only use a walker
part of the time to walk with.

I have to still use the

wheelchair most of the time because of the lack of proper
physical therapy and medical care.”

Id.

Only two defendants are identified with this claim.

One is

the Warden of the Hocking Correctional Facility, Mr. Banks, who,
according to Mr. Wilder’s complaint, was “legally responsible for
my medical needs and care.”

The other is an unnamed physician

identified only as “Doctor John Doe #12 (Respondent #20),” who
was allegedly “responsible for the lack of proper physical
therapy.”

Id.

When a complaint is screened under §1915A, it is subjected
to the same scrutiny as if a motion to dismiss for failure to
state a claim had been filed under Fed.R.Civ.P. 12(b)(6).
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010).

Hill

That means,

among other things, that the pleading standard contained in
Fed.R.Civ.P. 8(a), as construed by the Supreme Court in Ashcroft
-8-

v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), applies.

Id.

Under that pleading standard,

a plaintiff must plead facts, not legal conclusions, to support
the claims in the complaint, and it must be plausible, from the
facts pleaded, that the plaintiff could recover against the
defendant.
Taking the claim against the Warden first, the only facts
which have been pleaded are those relating to Mr. Wilder’s fall
and the alleged lack of medical care he has received at HCF.

His

assertion that the Warden is legally responsible for that care is
not only a legal conclusion rather than a fact, it is an
incorrect legal conclusion when asserted in the context of a
§1983 action.

In order for governmental officials to be liable

under §1983, they must have been personally involved in the
alleged unconstitutional conduct; the fact that they may have
supervised other officials who acted unconstitutionally, or that
they have overall supervisory responsibility for a particular
institution, is not enough to make them liable.

As the Court of

Appeals has stated, “a public official may not be held liable
under §1983 for the misconduct of those the official supervises
unless the plaintiff can demonstrate that the official is
culpable because he was personally involved in the allegedly
inadequate medical care provided ... or that he otherwise
encouraged or condoned others in providing such inadequate
medical care.”

Estate of Young v. Martin, 70 Fed. Appx. 256, 260

(6th Cir. 2003), citing Bellamy v. Bradley, 729 F.2d 416, 421
(6th Cir. 1984).

Unless a pleading contains some factual

allegations which go beyond identifying a defendant as a
supervisory official, it is subject to dismissal for failure to
state a claim.

See, e.g., Tate v. Lowery, 73 Fed. Appx. 866, *2

(6th Cir. Sept. 8, 2003)(affirming the dismissal of a complaint
for failure to state a claim against a prison supervisor because
-9-

“[t]he complaint contained no allegation that [the supervisor]
had any personal involvement in [the plaintiff’s] medical
treatment”), citing Bellamy, supra.

Mr. Wilder’s complaint

against Warden Banks is similarly deficient and could not survive
a motion to dismiss.
That leaves only the claim against the unidentified
physician, John Doe #12.

As noted above, the entirety of the

allegations against this doctor consists of this sentence: “Also,
Doctor John Doe #12 (Respondent #20) was responsible for the lack
of proper physical therapy.”

Complaint, at 5.

Standing alone,

this allegation is insufficient to plead an Eighth Amendment
deliberate indifference claim against the unnamed defendant.
First, it is impossible to tell from this allegation if the
“responsibility” attributed to the unnamed doctor is some type of
personal involvement in approving or providing physical therapy,
or supervisory responsibility over others at the institution who
are more directly responsible for Mr. Wilder’s care.

If it is

the latter, this claim fails for the same reason as the claim
against Warden Banks.
Even if Mr. Wilder is attempting to assert some type of
personal involvement, however (and he has pleaded no facts
describing either the nature or level of that involvement), there
are no facts in the complaint from which it could be inferred
that the doctor had the required mental state to satisfy the
“deliberate indifference” test set forth in Farmer v. Brennan,
511 U.S. 825 (1994).

That test absolves a prison official from

liability in medical care cases unless the plaintiff can show
that the official “kn[ew] of and disregard[ed] an excessive risk
to inmate health or safety....”

Id. at 837.

The failure to

plead facts from which this component of an Eighth Amendment
claim can be inferred requires dismissal of such a claim.

See,

e.g., Schmidt v. Healthcare Services, 2012 WL 289323, *3 (W.D.
-10-

Mich. Jan. 31, 2012)(holding that “[i]t is a basic pleading
essential that a plaintiff attribute factual allegations to
particular defendants” and that if “[t]here is nothing in
Plaintiff's allegations which supports the subjective component
of an Eighth Amendment claim” the complaint is properly
dismissed); Piatt v. Collins, 2010 WL 5019419, *2 (S.D. Ohio Oct.
19, 2010)(holding that an allegation that a prison health care
administrator refused to do anything about the plaintiff’s pain
“is tantamount to an unadorned ‘the-defendant-unlawfully- harmedme accusation’ prohibited by Iqbal”), adopted and affirmed 2010
WL 4976847 (S.D. Ohio Dec. 1, 2010).

From the brief allegation

against Dr. John Doe, one cannot plausibly infer that the doctor
was aware of a risk that Mr. Wilder would fall and fracture his
hip, or that he disregarded the risk (if there was one) that such
an injury was substantially certain to occur.

Further, it is

equally likely that Mr. Wilder has alleged only negligence on the
doctor’s part in failing to prescribe the “proper” type of
physical therapy for him, but mere negligence on the part of
prison officials is not actionable under §1983 even if it rises
to the level of medical malpractice.

See Comstock v. McCrary,

273 F.3d 693, 703 (6th cir. 2001)(“a plaintiff alleging
deliberate indifference must show more than negligence or the
misdiagnosis of an ailment”).
It is certainly possible that, through an amendment to the
complaint, which does not really focus on the events of 2010 so
much as the events of the prior years, Mr. Wilder could cure
these deficiencies.

However, the Court of Appeals has also “held

that the district courts are not to permit plaintiffs to amend a
complaint to avoid dismissal pursuant to th[e] provisions [of
§1915A].”

Benson v. O’Brian, 179 F.3d 1014, 1016 (6th Cir.

1999); see also Mobley v. Mohr, 2011 WL 4055234, *3 (S.D. Ohio
Sept. 12, 2011)(“no amendments to the complaint are permitted in
-11-

order to cure pleading deficiencies which are revealed by [the
initial] screening”).

Because the complaint cannot survive an

initial screening, no amendments are allowed, and the case must
be dismissed.
V.
For all of the reasons discussed in this Opinion and Order,
plaintiff’s objections (Doc. 13) are OVERRULED and the Report and
Recommendation (Doc. 9) is ADOPTED AND AFFIRMED.
DISMISSED under 28 U.S.C. §1915A.

This case is

The dismissal of all time-

barred claims is a dismissal with prejudice; the dismissal of the
claims which accrued less than two years before the filing of
this case is without prejudice, given that the claims, as stated,
are so short on factual allegations as to be frivolous and that
no specific defendants other than a John Doe physician and the
Warden are named in these claims.

Cf. Denton v. Hernandez, 504

U.S. 25, 34 (1992)(“Because a §1915(d) dismissal is not a
dismissal on the merits, but rather an exercise of the court’s
discretion under the in forma pauperis statute, the dismissal
does not prejudice the filing of a paid complaint making the same
allegations.

It could, however, have a res judicata effect on

frivolousness determinations for future in forma pauperis
petitions.”).
The Clerk shall mail a copy of the complaint, the Report and
Recommendation, and this Opinion and Order to each of the
defendants.
IT IS SO ORDERED.

s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: May 8, 2012

-12-