Austin v. Pickaway Correctional Institution et al
Filing
82
ORDER granting 59 Defendants' Motion for Judgment on the Pleadings; denying as moot 60 Plaintiff's Motion to Reopen Discovery and Modify the Case Management Schedule; granting 65 Defendant Dr. Khan's Motion to Dismiss; denying as moot 80 Defendant Dr. Kuhn's Motion to Stay the due date to Respond to the Complaint. Signed by Magistrate Judge Kimberly A. Jolson on 2/13/17. (sem)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT AUSTIN,
Plaintiff,
v.
Civil Action No. 2:14-cv-726
Magistrate Judge Kimberly A. Jolson
PICKAWAY CORRECTIONAL
INSTITUTION, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on numerous Motions. Specifically, Defendants have
filed a Motion for Judgment on the Pleadings (Doc. 59), a Motion to Dismiss Dr. Khan pursuant
to Rule 4(m) of the Federal Rules of Civil Procedure (Doc. 65), and a Motion to Stay Dr. Khan’s
Due Date to Respond to the Complaint (Doc. 80). Also before the Court is Mr. Austin’s Motion
to Reopen Discovery and Modify the Case Management Schedule (Doc. 60).
For the reasons set forth below, Defendants’ Motion for Judgment on the Pleadings (Doc.
59) and Motion to Dismiss Dr. Khan pursuant to Rule 4(m) (Doc. 65) are GRANTED. Further,
the Motion to Stay Dr. Khan’s Due Date to Respond to the Complaint (Doc. 80) and Mr.
Austin’s Motion to Reopen Discovery and Modify the Case Management Schedule (Doc. 60) are
DENIED AS MOOT.
I.
BACKGROUND
This Opinion and Order constitutes the Undersigned’s first opportunity to render a
decision in this case, which has a long and convoluted history. Plaintiff, Robert Austin, is an
inmate at the Pickaway Correctional Institution who suffers from polycythemia vera in addition
to other conditions. Mr. Austin raises numerous claims in this case pertaining to his medical
treatment. These claims, however, are not new, having been asserted in two prior cases in this
Court, namely Hendricks, et al. v. Kasich, et al., Case No. 2:12-cv-729, and Austin v. Kasich, et
al., Case No. 2:12-cv-983.
A.
Mr. Austin’s Original Case: Hendricks, et al. v. Kasich, et al.,
Case No. 2:12-cv-729
Mr. Austin asserted claims concerning alleged deliberate indifference to his medical
needs originally in Hendricks, et al. v. Kasich, et al., Case No. 2:12-cv-729. Mr. Austin filed the
Complaint in that case on October 23, 2012, in conjunction with another inmate, Benjamin
Hendricks, and the matter was assigned to Magistrate Judge Mark R. Abel and District Judge
George C. Smith. (Case No. 2:12-cv-729, Doc. 3). Proceeding pro se, Mr. Austin and Mr.
Hendricks alleged that they were housed at Pickaway Correctional Institution and each suffered
from different medical conditions that were treated improperly by the defendants. (See id.).
The allegations pertaining to Mr. Austin were as follows. Mr. Austin alleged that he had
a “Green filter” put in at Ohio State University Medical Center in 1997, while an inmate at Ross
Correctional Institution. (Id., ¶ 73). The purpose of the filter was to reduce the risk of blood
clots reaching his heart and/or lungs. (Id.). Mr. Austin claimed that the filter is effective for
only ten years, and he had “made several complaints about it not being replaced and/or removed
since 2007. . . . ” (Id., ¶ 74). According to Mr. Austin’s allegations, the defendants refused to
replace the filter or provide him with any other medical alternative; instead, they told him
continually not to worry about it. (Id.).
Mr. Austin also alleged that the defendants caused him to have a port implanted
unnecessarily on February 8, 2011. (Id., ¶ 75–76). Mr. Austin asserted that the defendants failed
to flush his port monthly, which is necessary to prevent infections and clotting problems. (Id.,
¶ 77). More specifically, Mr. Austin claimed that the failure to flush his port regularly resulted
2
in an unsuccessful attempt to flush it on February 23, 2012. (Id., ¶ 78). On that day, “one of the
two ports was clogged and could not be opened even after 2 hours of using Heparin.” (Id.).
Mr. Austin additionally alleged that the defendants improperly denied him treatment at a
wound clinic at Corrections Medical Center, where he was referred by treating institutional
physicians, and refused to or failed to administer properly an Unna’s (paste) boot for treating his
chronic leg ulcers. (Id., ¶¶ 82–85). Mr. Austin claimed that the defendants’ conduct caused him
to administer his own wound treatment in unsterilized environments, which resulted in numerous
infections. (Id., ¶¶ 85–86). Finally, Mr. Austin asserted that the defendants provided him with
insufficient management for the pain he suffers as a result of his condition. (Id., ¶¶ 87–90).
On October 23, 2012, Magistrate Judge Abel issued an Initial Screening Report and
Recommendation.
(Case No. 2:12-cv-729, Doc. 4).
In that Report and Recommendation,
Magistrate Judge Abel found that “[t]he complaint fails to allege any dates any individual
defendant denied Austin treatment” for polycythemia vera, wound care, and pain management.
(Id. at 12). Accordingly, Magistrate Judge Abel found that the Complaint “fail[ed] to give any
individual defendant fair notice of a claim that he or she denied Austin needed treatment for a
serious medical need.” (Id.). Based upon this finding, Magistrate Judge Abel recommended,
inter alia, that individual “defendants Mona Parks, Dr. Hale, Dr. Khan, and Anthony Ayers be
dismissed because the complaint fails to state a claim for a violation of the Eighth Amendment
under 42 U.S.C. § 1983 against them.” (Id. at 13). However, Magistrate Judge Abel found that,
at the initial screening stage, the Complaint contained other allegations sufficient to state a claim
against defendants John Kasich and Gary Mohr. (Id. at 12–13).
Magistrate Judge Abel also ruled that Mr. Hendricks and Mr. Austin had improperly
joined as plaintiffs. (Id. at 2). Consequently, Magistrate Judge Abel directed the Clerk to open a
3
separate case for Mr. Austin. The Clerk did so, opening Austin v. Kasich, et al., Case No. 2:12cv-983. A docket entry on October 23, 2012 states, “Plaintiff Robert Austin has been removed
from this case and a new separate case has been opened as case number 2:12CV983 for Robert
Austin.” The new case was assigned to Magistrate Judge Norah McCann King and Chief
District Judge Edmund A. Sargus, Jr.
Despite the opening of the new case on October 23, 2012, Mr. Austin continued to
litigate his claims in the original case. Pursuant to a Related Case Memorandum Order, the
original case was reassigned to Magistrate Judge Terence P. Kemp and District Judge Michael H.
Watson on November 1, 2012. (Case No. 2:12-cv-729, Doc. 9). Mr. Austin and Mr. Hendricks
filed a Joint Motion for an Extension of Time to file objections to Magistrate Judge Abel’s
September 23, 2012 Report and Recommendation on November 7, 2012. (Case No. 2:12-cv729, Doc. 11). Magistrate Judge Kemp granted that Joint Motion on November 16, 2012,
allowing Mr. Austin and Mr. Hendricks until December 3, 2012, to file their objections to
Magistrate Judge Abel’s Report and Recommendation. (Case No. 2:12-cv-729, Doc. 14).
B.
Mr. Austin’s Separate Case: Austin v. Kasich, et al., Case No. 2:12-cv-983
In the meantime, Chief Judge Sargus adopted Magistrate Judge Abel’s Report and
Recommendation in Case No. 2:12-cv-983 on November 20, 2012. (Case No. 2:12-cv-983, Doc.
6 at 2). In doing so, Chief Judge Sargus noted that Mr. Austin had made no objections to the
Report and Recommendation. (Id.). Thus, Mona Parks, Dr. Hale, Dr. Khan, and Anthony Ayers
were dismissed from the case. (Id.).
Pursuant to a Related Case Memorandum Order, the new case was reassigned to
Magistrate Judge Kemp and Judge Watson on November 27, 2012. (Case No. 2:12-cv-983, Doc.
10). Defendant Governor Kasich filed a Motion to Dismiss on December 14, 2012. (Case No.
4
2:12-cv-983, Doc. 12). Mr. Austin and Mr. Hendricks opposed the Motion to Dismiss (Case No.
2:12-cv-983, Doc. 14), and Governor Kasich filed a reply (Case No. 2:12-cv-983, Doc. 25).
On January 2, 2013, Mr. Austin filed an Objection to the Adoption of the Report and
Recommendation, explaining that Magistrate Judge Kemp had granted him an extension of time
to file his objections in the original case and the time for him “to respond ha[d] not yet elapsed.”
(Case No. 2:12-cv-983, Doc. 13 at 1). Thus, Mr. Austin argued that the adoption of Magistrate
Judge Abel’s Report and Recommendation was premature. (Id.).
On March 14, 2013, Judge Watson issued an Order on Mr. Austin’s Objection to the
Adoption of the Report and Recommendation. (Case No. 2:12-cv-983, Doc. 16). The Order
noted the confusion caused by the severing of the cases and that the Motion for Extension of
Time had been filed and granted only in the original case, namely Case No. 2:12-cv-729. (Id. at
2). Thus, Judge Watson granted Mr. Austin fourteen days to file an objection to Magistrate
Judge Abel’s Report and Recommendation. (Id.). Shortly after Judge Watson’s Order, on
March 29, 2013, Magistrate Judge Kemp issued a Report and Recommendation recommending
that Governor Kasich’s Motion to Dismiss be granted. (Case No. 2:12-cv-983, Doc. 17).
Mr. Austin filed his Objection to Magistrate Judge Abel’s Report and Recommendation
on April 1, 2013, also requesting to be “rejoined” with Mr. Hendricks. (Case No. 2:12-cv-983,
Doc. 18). The defendants filed a response to the Objection on April 15, 2013. (Case No. 2:12cv-983, Doc. 21). Thereafter, Mr. Austin requested an extension to time to file a reply in support
of his Objection. (Case No. 2:12-cv-983, Doc. 22). On May 7, 2013, Magistrate Judge Kemp
granted Mr. Austin’s Motion for an Extension of Time, allowing Mr. Austin until May 23, 2013
to file a reply. (Case No. 2:12-cv-983, Doc. 23). Mr. Austin did not file a reply by that date.
5
Instead, Mr. Austin filed a Motion to Voluntarily Withdraw on July 3, 2015. (Case No.
2:12-cv-983, Doc. 25). The Motion provided:
Plaintiff Robert Austin hereby submits this motion to voluntarily withdraw his
claims at this time. Plaintiff is currently dealing with medical complications that
may cost him his legs, he is a long term medical inmate with no law library access
other than a computer terminal, financially unable to conduct discovery, etc. For
these reasons, Plaintiff wishes to withdraw his claims with the option to refile
within one (1) year under Ohio Revised Code § 2305.19. . . .
(Id. at 1). On the same day, defendants Mr. Mohr, Mr. Eddy, Mr. Gardner, Ms. Parks, Dr. Hale,
Dr. Khan, and Mr. Ayers filed a “Stipulation to Plaintiff’s Motion to Voluntarily Withdraw.”
(Case No. 2:12-cv-983, Doc. 26). The “Stipulation” stated:
Defendants, by and through counsel, do hereby stipulate to the voluntary
dismissal of Plaintiff Robert Austin’s § 1983 action, Case No. 2:12-cv-983.
Defendants further acknowledge that Plaintiff’s dismissal shall be without
prejudice, thus permitting him to re-file this claim within one-year pursuant to
O.R.C. § 2305.19 notwithstanding any other limitations placed on his ability to refile such as the statute of limitations or other applicable law.
(Id. at 1). The Clerk terminated Case No. 2:12-cv-729 on July 5, 2013. Magistrate Judge
Kemp’s March 29, 2013 Report and Recommendation recommending that Governor Kasich’s
Motion to Dismiss be granted remained pending at the time the case was terminated. (Case No.
2:12-cv-983, Doc. 17).
C.
Mr. Austin Reopens Austin v. Kasich, et al., Case No. 2:12-cv-983
On May 21, 2014, Mr. Austin filed a pro se Motion to Reopen Case and to Appoint
Counsel in Case No. 2:12-cv-983. (Case No. 2:12-cv-983, Doc. 27). The defendants did not
oppose Mr. Austin’s Motion. (See Case No. 2:12-cv-983, Doc. 28). Consequently, on July 3,
2014, Magistrate Judge Kemp issued an Order stating, inter alia:
When the parties stipulated to Mr. Austin’s voluntary dismissal in accordance
with Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure (Docs. 25, 26),
Defendants specifically “acknowledge[d] that Plaintiff’s dismissal shall be
without prejudice, thus permitting him to re-file this claim within one year
6
pursuant to O.R.C. § 2305.19, notwithstanding any other limitations placed upon
his ability to re-file. . . .” (Doc. 26). The parties stipulated to voluntary dismissal
on July 3, 2013, and Mr. Austin filed his motion to reopen on May 21, 2014, well
within the one-year time frame allowed by O.R.C. §2305.19. Consequently, Mr.
Austin’s motion to reopen (Doc. 27) is granted. The Clerk is directed to reopen
this case on the Court’s docket.
(Id. at 1–2).
Additionally, Magistrate Judge Kemp denied Mr. Austin’s request for the
appointment of counsel. (Id.).
Magistrate Judge Kemp issued a Scheduling Order on October 3, 2014. (Case No. 2:12cv-983, Doc. 34). Pursuant to that Order, discovery was to be completed by June 30, 2015, and
any motions for summary judgment were to be filed by July 31, 2015. (Id. at 1). Magistrate
Judge Kemp thereafter granted a Motion for Extension of Time filed by Mr. Mohr, allowing until
August 14, 2015, to file dispositive motions. (Case No. 2:12-cv-983, Doc. 36).
Mr. Mohr filed his Motion for Summary Judgment on August 14, 2015. (Case No. 2:12cv-983, Doc. 37). On October 8, 2015, Magistrate Judge Kemp issued an Order noting that Mr.
Austin had failed to file a response to the Motion for Summary Judgment. (Case No. 2:12-cv983, Doc. 38).
Magistrate Judge Kemp therefore ordered Mr. Austin to file an opposing
memorandum within fourteen days. (Id. at 1). Magistrate Judge Kemp warned that Mr. Austin’s
“[f]ailure to do so may result either in the motion being treated as unopposed, or in dismissal of
this action for failure to prosecute.” (Id.).
Mr. Austin did not file an opposing memorandum or otherwise respond to Magistrate
Judge Kemp’s October 8, 2015 Order. Hence, on November 10, 2015, Magistrate Judge Kemp
issued a Report and Recommendation recommending that the case be dismissed without
prejudice for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
(Case No. 2:12-cv-983, Doc. 39).
On December 1, 2015, Judge Watson issued an Order
7
adopting Magistrate Judge Kemp’s November 10, 2015 Report and Recommendation. (Case No.
2:12-cv-983, Doc. 40).
More specifically, Judge Watson adopted a Report and Recommendation that Magistrate
Judge Kemp had issued on March 29, 2013 recommending that a Motion to Dismiss filed by
Governor Kasich be granted (Case No. 2:12-cv-983, Doc. 17) and ruled that the “case be
dismissed without prejudice for failure to prosecute because Plaintiff failed to respond to the
remaining Defendant Gary Mohr’s motion for summary judgment” (Case No. 2:12-cv-983, Doc.
39). Judge Watson noted that Mr. Austin failed to file any objections; thus, he adopted the
Report and Recommendations (Case No. 2:12-cv-983, Docs. 17, 39), granted Governor Kasich’s
Motion to Dismiss (Case No. 2:12-cv-983, Doc. 12) and dismissed Mr. Austin’s claim against
Mr. Mohr without prejudice. (Case No. 2:12-cv-983, Doc. 40).
D.
The Instant Case
After Mr. Austin filed a pro se Motion to Reopen Case and to Appoint Counsel in Case
No. 2:12-cv-983 on May 21, 2014, he retained counsel. However, rather than file a notice of
appearance in Mr. Austin’s ongoing case which he had sought to reopen, Mr. Austin’s counsel
filed this case—an entirely new action—based on the same claims. The Complaint was filed on
July 2, 2014, and Mr. Austin paid the full filing fee. (Doc. 1).
In this case, Mr. Austin again brings claims related to the failure to replace the filter he
had installed in 1997 (id., ¶¶ 25–26), the unnecessary implantation of a port on February 8, 2011
(id., ¶ 27–28), the failure to care for his port properly (id., ¶ 29), and the unsuccessful attempt to
flush his port on February 23, 2012 (id., ¶ 30).
Additionally, Mr. Austin again claims
Defendants have improperly denied him treatment at a wound clinic and refused to or failed to
properly administer an Unna’s (paste) boot for treating his chronic leg ulcers (id., ¶¶ 35–37),
8
forcing him to administer his own wound treatment in unsterilized environments and resulting in
numerous infections (id., ¶¶ 37–38). Finally, Mr. Austin again asserts that Defendants have
provided him a “woefully insufficient” regimen for the “significant pain” he suffers (id., ¶¶ 41–
42).
In a July 3, 2014 Order and Report and Recommendation, Magistrate Judge King
conducted an initial screen of Mr. Austin’s Complaint pursuant to 28 U.S.C. § 1915A. (Doc. 5).
Magistrate Judge King recommended that the Court dismiss all claims against Defendant
Pickaway Correctional Institution and all claims for money damages against the individual
Defendants in their individual capacities, as well as state law claims for medical malpractice.
(Id. at 2). However, Magistrate Judge King permitted Mr. Austin’s 42 U.S.C. § 1983 claims to
proceed against the individual Defendants for denial of medical care. (Id.). Mr. Austin filed
Objections to the Report and Recommendation. (Doc. 10).
Judge Gregory L. Frost overruled Mr. Austin’s Objections and adopted the Report and
Recommendation. (Doc. 19 at 4–5). Consequently, the sole claims that remain are under the
Eighth and Fourteenth Amendments for the denial of medical care by the individual Defendants.
(See id. at 5). With the consent of all parties, this action was referred to the Magistrate Judge for
disposition pursuant to 28 U.S.C. § 636(c).
On August 15, 2016, this case was reassigned to the Undersigned for all further
proceedings. (Doc. 57). Thereafter, Defendants and the State of Ohio filed a Motion for
Judgment on the Pleadings (Doc. 59) and Mr. Austin filed a Motion to Reopen Discovery and
Modify the Case Management Schedule (Doc. 60). Also before the Court are a Motion to
Dismiss Dr. Khan pursuant to Rule 4(m) of the Federal Rules of Civil Procedure (Doc. 65) and a
Motion to Stay Dr. Khan’s Due Date to Respond to the Complaint (Doc. 80).
9
II.
MOTIONS CONCERNING DR. KHAN
Defendants have moved to dismiss Dr. Khan pursuant to Rule 4(m) of the Federal Rules
of Civil Procedure (Doc. 65) and filed a Motion to Stay Dr. Khan’s Due Date to Respond to the
Complaint (Doc. 80). Although service for Dr. Khan originally appeared to be successful (Doc.
22), the summons was returned unexecuted on November 17, 2014, because Dr. Khan was no
longer employed at the prison. (See Doc. 23). The docket does not indicate that any extension
of time to serve Dr. Khan was granted. Nevertheless, service for Dr. Khan was not executed
until December 5, 2016 (Doc. 77), more than two years after it was due on November 11, 2014.
See Fed. R. Civ. P. 4(m) (pre-December 1, 2015 amendment; thus, requiring service within 120
days of filing).
Mr. Austin argues that he should be granted an extension for service and, alternatively,
that Dr. Khan waived his arguments pertaining to service. Here, the Court finds that service was
obtained so long after the allowable time that to grant a retroactive extension until December 5,
2016, would be unjust. And even if, as Mr. Austin contends, Dr. Khan’s actions could be
construed as constituting a waiver, for the reasons set forth below, this action must be dismissed.
Thus, the Motion to Dismiss Dr. Khan pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure is GRANTED (Doc. 65) and the Motion to Stay Dr. Khan’s Due Date to Respond to
the Complaint is DENIED AS MOOT (Doc. 80).
III.
MOTION FOR JUDGMENT ON THE PLEADINGS
In examining a motion for judgment on the pleadings under Rule 12(c), the Court uses
the same standard of review applied to a Rule 12(b)(6) motion to dismiss for failure to state a
claim. Mixon v. State of Ohio, 193 F.3d 389, 399–400 (6th Cir. 1999). Under Rule 12(b)(6), the
Court must construe the complaint in favor of the plaintiff, accept all well-pleaded factual
10
allegations as true, and evaluate whether the complaint contains “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Consequently, a complaint
that consists of “labels and conclusions” or “a formulaic recitation of the elements of a cause of
action” is insufficient. Id. (quoting Twombly, 550 U.S. at 555).
In the Motion for Judgment on the Pleadings, Defendants argue that Mr. Austin’s § 1983
claims are barred by the statute of limitations. (Doc. 59 at 5). In particular, Defendants point to
three § 1983 claims they assert are barred by the statute of limitations: (1) Mr. Austin’s claim
that Defendants failed to replace his filter as required after ten years; (2) Mr. Austin’s claim
concerning Defendants’ unnecessary implantation of the port; and (3) Mr. Austin’s claim that
Defendants improperly cared for the port, causing it to become clogged.
(Id. at 6–7).
Defendants also argue that they are entitled to qualified immunity. (Id. at 9–10).
A.
Statute Of Limitations
The applicable statute of limitations for § 1983 claims arising in Ohio is based on Ohio
Revised Code § 2305.10. Browning v. Pendleton, 869 F.2d 989, 900 (6th Cir. 1989). Ohio
Revised Code § 2305.10 requires, inter alia, that actions for bodily injury must be brought within
two years after their accrual. Id.; see also Burress v. Hamilton Cty. Criminal Investigations
Section Unit, No. 1:14-cv-390, 2014 WL 6673663, at *3 (S.D. Ohio Nov. 21, 2014) (noting that
the Browning decision, applying Ohio Revised Code § 2305.10’s two-year statute of limitations
to § 1983 claims arising in Ohio “consistently has been reaffirmed”).
“In actions brought under 42 U.S.C. § 1983, the statute of limitations commences to run
11
when the plaintiff knows or has reason to know of the injury which is the basis of his action.”
Cooper v. City of Westerville, Ohio, No. 2:13-cv-427, 2014 WL 617650, at *4 (S.D. Ohio Feb.
18, 2014) (citing Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984)). The plaintiff “has reason
to know of his injury when he should have discovered it through the exercise of reasonable
diligence.”
McCune v. Grand Rapids, 842 F.2d 903, 905 (6th Cir. 1988); see also
Trzebuckowski v. City of Cleveland, 319 F.3d 853, 856 (6th Cir. 2003) (“In determining when the
cause of action accrues in § 1983 cases, we look to the event that should have alerted the typical
lay person to protect his or her rights.”).
For claims based upon an alleged deliberate
indifference to a prisoner’s serious medical needs, the cause of action accrues when the prisoner
is denied medical care. Brookes v. Shank, No. 2:13-cv-516, 2014 WL 32306, at *2 (S.D. Ohio
Jan. 6, 2014). However, “[a]ctual actions . . . of refusing medical care represent discrete
unlawful actions (beyond passive inaction) that trigger the statute of limitations.” Bruce v. Corr.
Med. Servs., Inc., 389 Fed. App’x 462, 467 (6th Cir. 2010).
1.
Ohio’s Savings Statute
Ohio Revised Code § 2305.19(A), the relevant statute, provides that if, “[i]n any action
that is commenced[,] . . . the plaintiff fails otherwise than upon the merits, the plaintiff . . . may
commence a new action within one year after . . . or within the period of the original applicable
statute of limitations, whichever occurs later. . . .” Id. Thus, to fall under the relevant provisions
of Ohio’s Savings Statute, the plaintiff’s claims must have failed otherwise than upon the merits,
and the plaintiff must have re-filed those claims either within one year or within the period of the
original statute of limitations, whichever occurs later. See id. A plaintiff’s voluntary dismissal
constitutes a failure “otherwise than on the merits” for the purposes of Ohio’s Savings Statute.
Costell v. Toledo Hosp., 38 Ohio St. 3d 221, 223 (1988).
12
Mr. Austin argues that his claims are preserved by Ohio’s Savings Statute based on Case
No. 2:12-cv-983, the original case he filed on October 23, 2012, and dismissed voluntarily on
July 3, 2013. (See Doc. 70 at 4). However, “R.C. 2305.19 states that the plaintiff has the right to
file a new action, not multiple actions.” Graf v. Cirino, No. 96011, 2011 WL 2731355, at *1
(Ohio Ct. App. July 14, 2011) (quoting Koslen v. Am. Red Cross, No. 71733, 1997 WL 547838,
at *2 (Ohio Ct. App. Sept. 4, 1997)). Stated simply, “the savings statute can be used only once
to refile a case.” Thomas v. Freeman, 79 Ohio St. 3d 221, 227 (1997). Thus, question here is
whether Mr. Austin’s decision to reopen Case No. 2:12-cv-983 was an exercise of his right under
Ohio’s Savings Statute to bring a “new” action, thereby precluding him from bringing this case.
Magistrate Judge Kemp addressed a similar question in Case No. 2:12-cv-729. On May
21, 2014 (the same day Mr. Austin filed a pro se Motion to Reopen Case and to Appoint Counsel
in Case No. 2:12-cv-983), Mr. Hendricks filed a Motion to Voluntarily Dismiss Case No. 2:12cv-729.
(Case No. 2:12-cv-729, Doc. 42).
Following a Report and Recommendation
recommending dismissal (Case No. 2:12-cv-729, Doc. 43), the Court dismissed the case without
prejudice on November 25, 2014. (Case No. 2:12-cv-729, Docs. 45–46). Mr. Hendricks filed a
Motion to Reopen his case on October 5, 2015. (Case No. 2:12-cv-729, Doc. 48).
In considering the Motion to Reopen, Magistrate Judge Kemp found the:
motion suggests that [Mr. Hendricks] is now ready to pursue claims he had
previously sought to have voluntarily dismissed for health reasons. This
understanding is consistent with Mr. Hendricks’ discussion of the Ohio savings
statute in his motion to voluntarily dismiss his complaint without prejudice.
Hendricks v. Kasich, No. 2:12-cv-729, 2016 WL 1019259, at *2 (S.D. Ohio March 15, 2016).
Consequently, and in light of Mr. Hendricks’ pro se status, Magistrate Judge Kemp construed the
Motion to Reopen “as his attempt to comply with the savings statute and to pursue his claims by
way of a new civil action.” Id. The Court thus granted the Motion to Reopen and construed the
13
case to be a “new” action for purposes of the Ohio Saving Statute that was filed on October 5,
2015, the filing date of the Motion. Id.
Magistrate Judge Kemp’s decision is consistent with Ohio case law. See, e.g., King v.
Ricerca Biosciences, LLC, No. 2005-L-068, 2006 WL 1133214, at *2 (Ohio Ct. App. Apr. 28,
2006) (finding that the plaintiff’s decision to reopen the case rather than refile under a new case
number did not preclude him from maintaining his action under Ohio’s Savings Statute); see also
Koslen, 1997 WL 547838, at *2 (“A number of appellate cases have directly held that the
savings statute can be used only once.”) (citing Hancock v. Kroger, 103 Ohio App. 3d 266, 269
(1995); Iglodi v. Montz, No. 68621, 1995 WL 516609, at *2 (Ohio Ct. App. Aug. 31, 1995);
Worytko v. Feng, No. 72049, 1997 WL 379968, at *3 (Ohio Ct. App. July 3, 1997); Seawright v.
Zabell, No. 55232, 1989 WL 42251, at *2 (Ohio Ct. App. Apr. 27, 1989); Mocker v. Goldsmith,
No. 94 C.A. 169, 1996 WL 172376, at *3 (Ohio Ct. App. Apr. 2, 1996); Gailey v. Murphy, No.
C.A. 15805, 1993 WL 46647, at *2 (Ohio Ct. App. Feb. 24, 1993); Nagy v. Patterson, No. 94
CA005837, 1994 WL 619797, at *2 (Ohio Ct. App. Nov. 9, 1994)). It is logical that “[t]he
savings statute can be used only once, because otherwise, a plaintiff could infinitely refile his
action, and effectively eliminate statutes of limitations.” Id.
Based on the foregoing, the Court finds that when Mr. Austin filed his pro se Motion to
Reopen Case in Case No. 2:12-cv-983, he did so in an effort to pursue his claims under the
Savings Statute. See Hendricks, 2016 WL 1019259, at *2. Thus, Mr. Austin’s reopening of that
case constituted his single opportunity to maintain a “new action” under the statute, and that
“new action” was commenced on May 21, 2014, the day he filed the Motion to Reopen. (Doc.
27); see Hendricks, 2016 WL 1019259, at *2.
14
In the November 10, 2015 Report and Recommendation in Case No. 2:12-cv-983,
Magistrate Judge Kemp stated:
The facts of this case indicate a clear failure to prosecute. The Court specifically
advised plaintiff in its prior order that this action would be dismissed if plaintiff
failed to respond. That order has not been returned as undeliverable and the Court
assumes that plaintiff received it. Plaintiff has not offered any explanation for the
failure to respond. Therefore, the Court can only conclude that the failure is
intentional. An intentional failure to respond to a court order is sufficient
justification for a dismissal.
(Case No. 2:12-cv-983, Doc. 39 at 2). Consequently, Magistrate Judge Kemp recommended that
Case No. 2:12-cv-983 be dismissed without prejudice under Rule 41(b) of the Federal Rules of
Civil Procedure. (Id.). Judge Watson adopted that Report and Recommendation (see Case No.
2:12-cv-983, Docs. 40–41).
The relevant portion of the opposition to the Motion for Judgment on the Pleadings
ignores the fact Mr. Austin used his right to file a “new action” under Ohio’s Savings Statute in
Case No. 2:12-cv-983. (See Doc. 70 (claiming “this refiled case was filed within one year of the
voluntary dismissal of the originally filed case”). Doing so rendered this case untimely and
prohibited under the relevant case law. See, e.g., Graf, 2011 WL 2731355, at *1 (holding
plaintiff could not invoke savings statute a second time); Koslen, 1997 WL 547838, at *2 (same).
Finally, the Court can speculate that perhaps Mr. Austin opted not to prosecute the “new
action” after he reopened it because he subsequently obtained counsel. Although Mr. Austin
may not have realized the implications of reopening his original action, he should have known
based on Magistrate Judge Kemp’s warning that his intentional failure to respond would result in
dismissal.
Moreover, Mr. Austin’s counsel should have known that merely ignoring the
reopening of the case and filing a new action was contrary to the case law concerning Ohio’s
Savings Statute. For these reasons, this action is DISMISSED as untimely.
15
B.
The Merits And Statute of Limitations (Again)
Even if this case were not time barred, Mr. Austin’s claims would fail on the merits. In
order to plead a cause of action under 42 U.S.C. § 1983, a plaintiff must plead two elements:
“(1) a deprivation of a right secured by the Constitution or law of the United States (2) caused by
a person acting under color of state law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542
F.3d 529, 534 (6th Cir. 2008) (citation omitted). As Magistrate Judge Abel found in the Initial
Screening Report and Recommendation in the original case (Case No. 2:12-cv-729, Doc. 4), “[t]he
complaint fails to allege any dates any individual defendant denied Austin treatment” for
polycythemia vera, wound care, and pain management (id. at 12). Accordingly, the Complaint
“fails to give any individual defendant fair notice of a claim that he or she denied Austin needed
treatment for a serious medical need.” (Id.). Because the Complaint is devoid of any factual
content that would allow the Court to draw the reasonable inference that Defendants are liable
for the alleged violation of Mr. Austin’s rights, see Iqbal, 556 U.S. at 678, it is insufficient.
Furthermore, even if Mr. Austin had pursued his claims pertaining to the filter in his
reopened case, that claim would be barred by the statute of limitations. More specifically, Mr.
Austin asserts deliberate indifference to his serious medical needs beginning with Defendants’
failure to replace his filter in 2007, ten years after it was installed. (Doc. 1, ¶ 26). At that time,
Defendants allegedly refused to replace the filter or provide Mr. Austin with any other medical
alternative, telling him “not to worry about it.” (Id.). The failure to replace the filter in 2007 is
an event that should have alerted the typical lay person to protect his rights. See Trzebuckowski,
319 F.3d at 856. Because that claim needed to be brought within two years after accrual, see
Cooper, 2014 WL 617650, at *4, any action for it filed after 2009 would be barred by the statute
of limitations.
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IV.
CONCLUSION
For the reasons set forth above, Defendants’ Motion for Judgment on the Pleadings (Doc.
59) and Motion to Dismiss Dr. Khan pursuant to Rule 4(m) (Doc. 65) are GRANTED. The
Clerk shall DISMISS this case against Dr. Khan and enter JUDGMENT in favor of the
remaining Defendants and against Mr. Austin. The Motion to Stay Dr. Khan’s Due Date to
Respond to the Complaint (Doc. 80) and Mr. Austin’s Motion to Reopen Discovery and Modify
the Case Management Schedule (Doc. 60) are DENIED AS MOOT.
This case is
TERMINATED.
IT IS SO ORDERED.
Date: February 13, 2016
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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