Boddie v. VanSteyn

Filing 5

REPORT AND RECOMMENDATION that 4 Complaint be dismissed. Objections to R&R due by 4/25/2017. For the reasons stated in this Order, 1 MOTION for Leave to Proceed in forma pauperis is granted. Signed by Magistrate Judge Terence P. Kemp on 4/11/20107. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Howard Boddie, Jr.,

:

Plaintiff,

:
:

Scott J. Van Steyn,
Defendant.

JUDGE GEORGE C. SMITH

:

v.

Case No. 2:17-cv-24

Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
Plaintiff Howard Boddie, Jr., a former state prisoner
proceeding pro se, filed this action under 42 U.S.C. §1983
against Scott J. Van Steyn. He has moved for leave to proceed in
forma pauperis.

The Court will grant the motion for leave to

proceed in forma pauperis.

For the following reasons, it will

be recommended that the complaint be dismissed under 28 U.S.C.
§1915(e).
I.
28 U.S.C. §1915(e)(2) provides that in proceedings in forma
pauperis, “[t]he court shall dismiss the case if... (B) the
action... is frivolous or malicious [or] fails to state a claim
on which relief can be granted...”

The purpose of this section

is to prevent suits which are a waste of judicial resources and
which a paying litigant would not initiate because of the costs
involved. See Neitzke v. Williams, 490 U.S. 319 (1989).

A

complaint may be dismissed as frivolous only when the plaintiff
fails to present a claim with an arguable or rational basis in
law or fact. See id. at 325.

Claims which lack such a basis

include those for which the defendants are clearly entitled to

immunity and claims of infringement of a legal interest which
does not exist, see id. at 327-28, and “claims describing
fantastic or delusional scenarios, claims with which federal
district judges are all too familiar.” Id. at 328; see also
Denton v. Hernandez, 504 U.S. 25 (1992).

A complaint may not be

dismissed for failure to state a claim upon which relief can be
granted if 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).

Pro se complaints are to be

construed liberally in favor of the pro se party. Haines v.
Kerner, 404 U.S. 519 (1972).

The complaint will be evaluated

under these standards.
II.
By way of background, Mr. Boddie, while incarcerated in the
Chillicothe Correctional Institution, filed a virtually
identical action against Dr. Van Steyn raising the same claims
he raises here and sought leave to proceed in forma pauperis.
His motion to proceed in forma pauperis was denied pursuant to
the “three strikes rule” set forth in 28 U.S.C. §1915(g), which
requires assessment of the full filing fee in a case brought by
a prisoner who has had three or more prior cases dismissed as
frivolous, malicious, or for failure to state a claim upon which
relief can be granted.

That case was ultimately dismissed for

Mr. Boddie’s failure to pay the filing fee in full as ordered.
See Boddie v. Van Steyn, Case No. 2:15-cv-06 (S.D. Ohio Apr. 20,
2016).
III.
In his current complaint, Mr. Boddie alleges that Dr. Van
Steyn “violated the physician patient relationship and disclosed
confidential medical information to” three separate third
parties on three separate occasions (Doc. 1 at 3).
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According to

the complaint, Dr. Van Steyn’s alleged unauthorized disclosures
to state officials constituted “violations of his First, Fourth,
Fifth, Sixth, Eighth, Thirteenth and Fourteenth Amendment Rights
[that] subjected Plaintiff to wrongful detention...racial
discrimination, denial of due process and access to the courts,
and other related damages” (Id. at 9).

He further alleges that

Dr. Van Steyn conspired with state officials, therefore making
him subject to liability under 42 U.S.C. §1983.
According to the complaint, in April, 2009, Mr. Boddie
consulted Dr. Van Steyn about the possibility of reconstructive
surgery on his left knee.

According to the complaint, this

surgery was completed on April 23, 2009.

At that time, Mr.

Boddie also was facing criminal charges, which required Dr. Van
Steyn to communicate with state prosecutors and other officials
regarding Mr. Boddie’s surgical recovery.

Mr. Boddie alleges

that Dr. Van Steyn breached his duty of confidentiality by
failing to respond to a state subpoena for medical records, and
instead interacting with state prosecutors and divulging “halflies” about Mr. Boddie’s “race, physical dependency, drug and
mental state” without consent (Id. at 15).

Mr. Boddie alleges

that these events caused him to miss his court date and
ultimately resulted in his conviction and imprisonment.

The

three separate disclosures at issue in Mr. Boddie’s complaint
occurred in May and June, 2009.

Consequently, these disclosures

occurred on a date more than two years before Mr. Boddie filed
his current complaint.
As another Judge of this Court has explained:
Although the statute of limitations is normally an
affirmative defense raised by defendants in an answer,
“if a statute of limitations defense clearly appears
on the face of a pleading, the district court can raise
the issue sua sponte.” Watson v. Wayne County, 90
Fed.Appx. 814, 815 (6th Cir. 2004)(citing Pino v. Ryan,
49 F.3d 51, 53-54 (2d Cir. 1995)); see also Alston v.
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Tenn. Dep’t of Corr., 28 Fed.Appx.475, 476 (6th Cir.
2002)(“Because the statute of limitations defect was
obvious from the face of the complaint, sua sponte
dismissal of the complaint was appropriate.”). Moreover,
“[w]here a particular claim is barred by the applicable
statute of limitations, it does not present an arguable
or rational basis in law or fact and therefore may be
dismissed as frivolous under § 1915(e)(2).” Fraley v.
Ohio Gallia Cnty., No. 97-3564, 1998 WL 789385, at *1
(6th Cir. Oct. 30, 1998). While state law provides the
statute of limitations to be applied in a §1983 action,
federal law governs when that limitations period begins
to run. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir.
1984). The statute of limitations begins to run when
“the plaintiff knows or has reason to know of the injury
which is the basis of his action.” Id. at 273.
Hurst v. State of Ohio Bureau of Investigation and
Identification, 2016 WL 1604553, *3 (S.D. Ohio April 22, 2016)
(Marbley, J.).
The statute of limitations applicable to claims arising
under 42 U.S.C. §1983 is the two-year statute of limitations for
personal injury claims found in Ohio Revised Code §2305.10.
Brown v. Pendleton, 869 F.2d 989 (6th Cir. 1989).

Mr. Boddie

did not file this case until January 10, 2017, a date well
beyond the applicable limitations period.

Additionally,

according to the allegations of the complaint, Mr. Boddie knew
that the alleged breach and injury occurred no later than May,
2009.

According to Mr. Boddie, this was the time period during

which the state prosecutor disclosed Dr. Van Steyn’s
“revelations” in open court.

For these reasons, Mr. Boddie’s

claims are clearly time-barred.
Mr. Boddie’s reliance on the Ohio savings statute in his
complaint does not require a different result.

According to Mr.

Boddie’s allegations, because he filed this action on January
10, 2017, and that date is within one year of the Court of

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Appeals’ most recent orders in Case No. 15-006, he has met the
requirements for proceeding under that statute.
Certainly, “when applying a state’s statute of limitations,
this Court is required to use the state’s procedural rules
affecting that statute of limitations.” Hendricks v. Kasich,
2016 WL 1019259, *2 (S.D. Ohio March 15, 2016), citing Coleman
v. Department of Rehabilitation and Corrections, 46 Fed.Appx.
765 (6th Cir. 2002).

The Ohio savings statute, codified in Ohio

Rev. Code 2305.19, provides:
In any action that is commenced or attempted to be
commenced, if in due time a judgment for the plaintiff
is reversed or if the plaintiff fails otherwise than
upon the merits, the plaintiff...may commence a new action
within one year after the date of the reversal of the
judgment or the plaintiff’s failure otherwise than upon the
merits or within the period of the original applicable
statute of limitations, whichever occurs later….
The Court of Appeals has explained the Ohio statute in this
way:
The statute allows for the commencement of a new
action within one year from the date of the failure
of an original cause of action providing that four
criteria have been met: “(1) the action must have
been commenced or attempted to be commenced within
the applicable period of limitations; (2) the failure
of the plaintiff in the action was otherwise than upon
the merits; (3) at the date of such failure, the time
limit for commencing the action had expired; and (4)
the plaintiff refiled the action within one year of such
failure.
Johnson v. University Hospital of Cleveland, 46 Fed.Appx. 238,
243 (6th Cir. 2002), quoting Harris v. City of Canton, 725 F.2d
371, 375 (6th Cir. 1984).
Mr. Boddie fails the first prong of this test.

He did not

commence or attempt to commence his previous action within the
applicable statute of limitations.

As stated, the applicable

statute of limitations for §1983 claims in Ohio is two years.
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Mr. Boddie’s previous action arose from the same alleged actions
of Dr. Steyn in May, 2009.
January 2, 2015.

Mr. Boddie filed that action on

That date also was well after the two-year

statute of limitations had run.

Because Mr. Boddie’s previous

action was not timely filed, the Ohio savings statute does not
operate to preserve his claims in this case.
IV.

Recommendation and Order

For all of the reasons stated above, the motion for leave
to proceed in forma pauperis (Doc. 1) is granted.

It is

recommended that the complaint be dismissed under 28 U.S.C.
§1915(e)(2) for failure to state a claim upon which relief can
be granted based on the statute of limitations.

It is further

recommended that if this recommendation is adopted, a copy of
the complaint, this Report and Recommendation, and the dismissal
order be mailed to the defendant.
V.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which
objection is made, together with supporting authority for the
objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.
Upon proper objections, a judge of this Court may accept,
reject, or modify, in whole or in part, the findings or
recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions.
28 U.S.C. §636(b)(1).

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The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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