Braziel v. Wilson

Filing 9

MEMORANDUM. An appropriate judgment will enter signed by District Judge Curtis L Collier on 12/5/11. (JGK, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
JAMES BRAZIEL
Plaintiff,
v.
DR. BILL WILSON,
Defendant.

)
)
)
)
)
)
)
)

No. 1:11-cv-119
Chief Judge Curtis L. Collier

MEMORANDUM
Plaintiff James Braziel (“Plaintiff” or “Braziel”), a pro se prisoner, has filed a civil rights
complaint pursuant to 42 U.S.C. §1983 (Court File No. 2). Plaintiff brings suit against Dr. Bill
Wilson, a physician, alleging he would not repair his broken jaw. According to Plaintiff he was
denied treatment by Defendant while at the Hamilton County Jail on April 14, 2010, and while at
CCA-Silverdale on April 16, 2010.
Plaintiff, who has since been transferred to a state facility, seeks repair of his jaw and
“leave[s] it up to the Judge’s descression [sic] for the amount of money for pain and suffering.”
(Court File No. 2).
For the reasons explained herein, no service shall issue and the complaint will be
DISMISSED in its entirety (Court File No. 2). Specifically, the claims for denial of medical care
will be dismissed as frivolous because those claims are time-barred. In addition, his motion to
proceed in forma pauperis will be GRANTED IN PART and DENIED IN PART (Court File Nos.
1 & 5).

I.

Application to Proceed In Forma Pauperis

It appears from the application to proceed in forma pauperis submitted by Plaintiff that he
lacks sufficient financial resources at the present time to pay the required filing fee of $350.00.
Since Plaintiff is a prisoner at the Whiteville Correctional Facility in Whiteville, TN, he will be
ASSESSED the civil filing fee of $350.00 under the Prisoner Litigation Reform Act, Pub. L.
104-134, 110 Stat. 1321 (1996), codified in 28 U.S.C. § 1915. Therefore, Plaintiff’s motion to
proceed in forma pauperis will be GRANTED IN PART and DENIED IN PART (Court File No.
1 & 5). Plaintiff’s motion to proceed in forma pauperis will be DENIED to the extent the filing fee
will not be waived but GRANTED to the extent Plaintiff can file his complaint without the
prepayment of the full filing fee. Therefore, Plaintiff is not relieved of the ultimate responsibility
of paying the $350.00 filing fee, but rather, will be ASSESSED the entire filing fee and permitted
to pay it in installments in accordance with the Prison Litigation Reform Act of 1995, Pub. L. No.
104-134, 28 U.S.C. § 1915(b)(1); see McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997),
abrogated on other grounds, Jones v. Bock, 549 U.S. 199, 205 (2007).
Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B), the custodian of Plaintiff’s inmate trust
account at the institution where he now resides shall submit to the Clerk, United States District
Court, Room 309, Chattanooga, Tennessee 37402, as an initial partial payment, whichever is the
greater of
(a)

twenty percent (20%) of the average monthly deposits to Plaintiff’s inmate
trust account; or

(b)

twenty percent (20%) of the average monthly balance in Plaintiff’s inmate
trust account for the six-month period preceding the filing of the complaint.

Thereafter, the custodian shall submit twenty percent (20%) of Plaintiff’s preceding monthly
income (or income credited to his trust account for the preceding month), but only when such
2

monthly income exceeds $10.00, until the full filing fee of $350.00 as authorized under 28 U.S.C.
§ 1914(a) has been paid to the Clerk. 28 U.S.C. § 1915(b)(2).
The Clerk of Court is DIRECTED to send a copy of this memorandum and order to the
Warden and Custodian of Inmate Trust Fund Accounts at Whiteville Correctional Facility in
Whiteville, Tennessee, the Commissioner of the Tennessee Department of Corrections, and the
State Attorney General to ensure the custodian of Plaintiff’s inmate trust account complies with the
portion of the Prison Litigation Reform Act relating to payment of the filing fee.
The agency having custody of Plaintiff SHALL collect the filing fee as funds become
available. This order shall become a part of inmate Plaintiff’s file and follow the inmate if he is
transferred to another institution. The agency having custody of Plaintiff shall continue to collect
monthly payments from his prisoner account until the entire filing fee of $350.00 is paid.
II.

Standard of Review
A.

Pro Se Pleadings

All well-pleaded factual allegations contained in the complaint must be sufficient “to state
a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Mere “labels and conclusion” will not do. Id. at 555. Moreover, a pro se pleading must be liberally
construed and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976).
However, pro se status does not exempt the plaintiff from the requirement that he comply
with relevant rules of procedural and substantive law. Hulsey v. State of Texas, 929 F.2d 168, 171
(5th Cir. 1991); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981). Pro se plaintiffs must comply
with Rule 8 of the Federal Rules of Civil Procedure which provides that a complaint must contain

3

“a short and plain statement of the claim showing that the pleader is entitled to relief. . . .” LRL
Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1104 (6th Cir. 1995). Although the
standard of review is liberal, it does require more than the bare assertion of legal conclusions.
Lillard v. Shelby County Bd. Of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (standard of review for
dismissing a complaint pursuant to Fed. R. Civ. P. 12(b)(6)-failure to state a claim upon which relief
may be granted); LRL Properties, 55 F.3d at 1103-04; Allard v. Weitzman (In re DeLorean Motor
Co.), 991 F.2d 1236, 1240 (6th Cir. 1993); Hartfield v. East Grand Rapids Public Schools, 960 F.
Supp. 1259, 1268 (W.D. Mich. 1997).
B.

Screening Pursuant to 28 U.S.C. §§ 1915A and 1915(e)

The Court screens the complaint pursuant to 28 U.S.C. § 1915A and § 1915(e). Title 28
U.S.C. §§ 1915(e)(2), 1915A, and Title 42 U.S.C. § 1997e(c) require the Court to sua sponte dismiss
complaints filed by prisoners proceeding in forma pauperis upon a determination that they are
frivolous or fail to state a claim upon which relief can be granted. See McGore v. Wrigglesworth,
114 F.3d at 608.
Under these statutes, a claim is frivolous only when it lacks an arguable basis either in law
or in fact. Neitzke v. Williams, 490 U.S. 319 (1989). Claims that are barred by the applicable statute
of limitations are frivolous. Dellis v. Corrections Corp. of America, 257 F.3d 508, 511 (6th Cir.
2001) (Claims barred by the statute of limitations are frivolous); 28 U.S.C. §§ 1915A and 1915(e).

III.

Facts
For purposes of this review the Court accepts all factual allegations in the complaint as true.

4

On April 13, 2010, the son of the Plaintiff’s girlfriend broke his jaw and robbed him. On April 14,
2010, Plaintiff was arrested for a probation violation and was incarcerated in the Hamilton County
Jail. On that date, he told Dr. Wilson he had a broken jaw. The physician responded that since he
came to jail with a broken jaw, he would leave jail with it. The next day Plaintiff complained to the
Sheriff. On April 16, 2010, Plaintiff was transferred to CCA-Silverdale, where he requested medical
attention and again, Dr. Wilson told him since he came to jail with a broken jaw he would leave with
it.
IV.

Analysis
To state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege he was deprived of

a right, privilege, or immunity secured by the Constitution or laws of the United States by a person
acting under color of law, without due process of law. Flagg Brothers Inc. v. Brooks, 436 U.S. 149,
155 (1978); Chatman v. Slagle, 107 F.3d 380, 384 (6th Cir. 1997); Brock v. McWherter, 94 F.3d
242, 244 (6th Cir. 1996); O’Brien v. City of Grand Rapids, 23 F.3d 990, 995 (6th Cir. 1994); Rhodes
v. McDannel, 945 F.2d 117, 119 (6th Cir. 1991) cert. denied, 502 U.S. 1032 (1992).
To present an Eighth Amendment failure to provide medical care claim, a plaintiff must
suffer from a serious medical need. Wilson v. Seiter, 501 U.S. 294, 297 (1991). A medical need is
serious for constitutional purposes if it presents “‘a condition of urgency’ that may result in
‘degeneration’ or ‘extreme pain.’” Chance v. Armstrong, 143 F.3d 698, 702 (2nd Cir. 1998)
(citations omitted). Plaintiff’s factually unsupported, self-diagnosis of a broken jaw, however, fails
as a matter of law to rise to a level sufficient to support a finding of a serious medical need. See
Word v. Croce, 169 F. Supp. 2d 219, 226 (S.D. N.Y. 2001) (Plaintiff’s self-diagnosis of irritable
bowel syndrome was insufficient to support a medical condition requiring a special diet).

5

Nevertheless, assuming for the sake of discussion that Plaintiff states viable § 1983 claims against
Defendant, as explained below, the claims are barred by the applicable statute of limitations.

Plaintiff’s claims stem from the alleged denial of medical care on April 14, 2010, and April
16, 2010. For purposes of 42 U.S.C. § 1983, the state statutes of limitation and tolling principles
shall apply to determine the timeliness of the claims asserted, Wilson v. Garcia, 471 U.S. 261, 26869 (1985), as neither the United States Constitution nor the federal statutes enacted by Congress
expressly provide a statute of limitations for claims arising under 42 U.S.C. § 1983. Harris v.
United States, 422 F.3d 322, 331 (6th Cir. 2005) (discussing the application of state law to determine
statute of limitations in § 1983 and in such actions involving federal parties). Specifically, 42 U.S.C.
§ 1983 does not contain a statute of limitations. Where Congress does not specify a period of
limitations in a federal statute for bringing a civil action, this Court is required to apply the most
closely analogous state statute of limitation and tolling principles to determine the timeliness of the
claims asserted. Wilson v. Garcia, 471 U.S. at 268-69. However, federal law determines the
accrual of those claims.
Under Tennessee law, the statute of limitation for a civil action for compensatory or punitive
damages brought under the federal civil rights statute is one year after the cause of action has
accrued. The one-year statute of limitation period contained in Tenn. Code Ann. § 28-3-104(a)(3)
applies to civil rights claims arising in Tennessee. Berndt v. Tennessee, 796 F.2d 879, 883 (6th Cir.
1986). Tenn. Code Ann. § 28-3-104(a)(3) provides that actions brought under federal civil rights
statutes shall be commenced within one year after the cause of action accrued. Federal law
determines when claims accrue. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996), cert. denied,

6

520 U.S. 1267 (1997).
Generally, a tort cause of action accrues when there has been a violation of a legally
protected interest, and such a violation usually occurs when a tort is committed. See Echols v.
Chrysler Corp., 633 F.2d 722, 725-26 (6th Cir. 1980). In 42 U.S. C. § 1983 cases, a cause of action
accrues and the statute of limitations commences to run when the plaintiff knows or has reason to
know of the injury which is the basis of his complaint. Kelly v. Burks, 415 F.3d 558, 561 (6th Cir.
2005); Collyer, 98 F.3d at 220. A plaintiff has reason to know of his injury when he should have
discovered it through
the exercise of reasonable diligence. Friedman v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir.
1991).
To determine when Plaintiff’s 42 U.S.C. § 1983 claims accrued and the one-year statute of
limitations commenced to run, we look to the date when Plaintiff became aware of the claims he
now raises. See Friedman v. Estate of Presser, 939 F.2d 1151, 1159 (6th Cir. 1991) (“A plaintiff
has reason to know of his injury when he should have discovered it through the exercise of
reasonable diligence.” (Punctuation and citations omitted)). Plaintiffs have one year from the date
a cause of action accrued within which to file federal civil rights claims under 42 U.S.C. § 1983.
Because the alleged unconstitutional denial of medical care occurred on two separate
occasions at two different facilities, i.e., April 14, 2010, and April 16, 2010, Plaintiff's Eighth
Amendment denial of medical care claim accrued at the time of the alleged denial of medical care,
i.e., April 14, 2010, and April 16, 2010. Therefore, the one-year statute of limitations commenced
to run on those two dates.

7

The prison mailbox rule provides that a filing by an incarcerated pro se inmate is deemed
to be filed when he delivers the mail to prison authorities for mailing to the Court. Houston v. Lack,
487 U.S. 266 (1988). The Court is unable to determine when Plaintiff gave the complaint to the
prison mailroom. For purposes of calculating the statute of limitations, the Court will generously
use the date on which Plaintiff signed his complaint since the Court is unable to determine the date
on which he gave it to prisoner authorities. Therefore, Plaintiff’s civil complaint is deemed to have
been filed April 28, 2011, the date on which he signed his complaint. Consequently, the one-year
statute of limitation expired on April 14, 2011, and April 18, 2011, 1 fourteen (14) and ten (10) days
respectively, prior to Plaintiff filing this civil rights complaint.
Accordingly, Plaintiff’s claims that he was denied medical treatment will be DISMISSED
WITH PREJUDICE as frivolous on the ground that the denial of medical care claims are
time-barred by the applicable statute of limitations, and therefore, lack an arguable or rational basis
in law. Dellis v. Corrections Corp. of America, 257 F.3d 508, 511 (6th Cir. 2001) (claims barred
by the statute of limitations are frivolous); Day v. E.I. Du Pont De Nemours and Co., 165 F.3d 27
(6th Cir. Sept. 17, 1998), available in 1998 WL 669939 at *1 (the sua sponte dismissal of in forma
pauperis complaint appropriate under 28 U.S.C. § 1915(e)(2) where complaint bears an affirmative
defense such as the statute of limitations and is therefore frivolous on its face) (citing Pino v. Ryan,
49 F.3d 51, 53-54 (2nd Cir. 1995)); Ashiegbu v. Kim, 145 F.3d 1329 (6th Cir. Apr. 24, 1998)
available at 1998 WL 211796, *1 (affirmed dismissal of claim as frivolous because it was barred

1

The statute of limitations period for the April 16, 2010, incident actually expired on
Saturday, April 16, 2011. Pursuant to the computation rules in the Federal Rules of Civil Procedure,
since the last day of the period ended on Saturday, the period continues to run until the end of that
next day that is not weekend or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
8

by statute of limitations and did not present a rational basis in law). Thus, Plaintiff’s complaint
against the defendant will be DISMISSED sua sponte in its entirety.
An appropriate judgment will enter.

/s/
CURTIS L. COLLIER
CHIEF UNITED STATES DISTRICT JUDGE

9