Lawson v. Rice et al
Filing
72
OPINION AND ORDER by Judge Frank H. Seay dismissing with prejudice this action against defendant John F. Mumey, M.D. (neh, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
CAROLYN SUE LAWSON, as the
Personal Representative for the
Estate of JOHN FITZGERALD PERRY,
deceased,
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
OKMULGEE COUNTY CRIMINAL
)
JUSTICE AUTHORITY, a public trust,
)
NURSE T. WEST, LPN, JOHN F.
)
MUMEY, M.D., NURSE FREEMAN, LPN, )
STATE OF OKLAHOMA ex. rel.,
)
OKLAHOMA DEPARTMENT OF
)
CORRECTIONS, LINDSAY MUNICIPAL )
HOSPITAL, and ROSS LANE FISHER,
)
M.D.,
)
)
Defendants.
)
Case No. 15-CV-300-FHS
OPINION AND ORDER
On July 18, 2016, this Court entered a show cause order directing Plaintiff to show
cause within fourteen (14) days why Defendant John F. Mumey, M.D. should not be
dismissed for the reaosns stated in the Order dismissing Defendants West, Freeman, and
OCCJA (Dkt. No. 69). Additionally, Plaintiff was directed to show cause why this action
should not be dimsissed against Defendant Mumey for failure to prosecute pursuant to
Fed.R.Civ.P. 41(b). Id. On August 1, 2016, Plaintiff filed a response in which she states
dismissal is not properly before the Court because Dr. Mumey is in default (Dkt. No. 71).
Additionally, Plaintiff argues the claims are not barred by the applicable statute of
limitations. Id. Finally, Plaintiff argues this Court should not dismiss the action under
Fed.R.Civ.P. 41(b) because it is the Defendant who has filed to comply with the Federal
Rules of Civil Procedure and not the Plaintiff. Id.
In a very detailed Order entered herein on May 13, 2016, this Court held the
statute of limitations were barred on Plaintiff’s claims against Defendants West,
Freeman, and the OCCJA because the statute of limitations had expired on both
Plaintiff’s federal and state constitutional claims. See, Dkt. No. 67.
While Plaintiff
urges this Court to find the statute of limitations does not bar Plaintiff’s claims against
Defendant Mumey, the Amended Complaint indicates Defendant Mumey was “an
employee and/or agent of Okmulgee County/OCCJA, who was, in part, responsible for
overseeing Mr. Perry’s health and well-being, and assuring that Mr. Perry’s medical
needs were met, during the time he was in custody of OCCJA.” Dkt. No. 19, at p. 3. The
Amended Complaint further indicates Plaintiff was transferred from OCCJA in
September, 2011. Id., at p. 5. Based upon these facts, this Court finds the latest date
Plaintiff’s claims could have accrued against Defendant Mumey occurred on the date of
his release from the Okmulgee County Jail on or about September 28, 2011. As a result,
a lawsuit alleging federal constitutional violations should have been filed no later than
September 28, 2013.
The complaint was not filed herein until August 10, 2015.
Therefore, this Court finds the statute of limitations prevents this Court exercising
jurisdiction over Defendant Mumey.
2
Additionally, for the reasons set forth in the Order entered herein on May 13,
2016, this Court finds the state constititonal claim against Defendant Mumey is also
barred by the statue of limitations.
For these reasons this Court finds this action should be dismissed with prejudice
against Defendant Mumey.
It is so ordered on this 15th day of August, 2016.
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?