Marks v. Livingston et al

Filing 68

MEMORANDUM ORDER OVERRULING PLAINTIFF'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the motion to dismiss be granted and this lawsuit be dismissed for failure to state a claim upon which relief may be granted. Signed by Judge Marcia A. Crone on 9/11/14. (mrp, )

UNITED STATES DISTRICT COURT
WILFORD MARKS,
Plaintiff,
versus
REGINALD GOINS, et al.,
Defendants.

EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:11-CV-333

MEMORANDUM ORDER OVERRULING PLAINTIFF’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Wilford Marks, an inmate confined within the Texas Department of Criminal
Justice, Correctional Institutions Division, proceeding pro se, filed this civil rights lawsuit
pursuant to 42 U.S.C. § 1983 against Reginald Goins and an unidentified practice manager. The
court previously referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
Defendant Goins has filed a motion to dismiss. The magistrate judge has submitted a
Report and Recommendation of United States Magistrate Judge recommending that the motion to
dismiss be granted and this lawsuit dismissed for failure to state a claim upon which relief may
be granted.
The court has received the Report and Recommendation of United States Magistrate Judge,
along with the record, pleadings, and all available evidence. Plaintiff filed objections to the
Report and Recommendation. The court must therefore conduct a de novo review of the
objections.
The magistrate judge construed plaintiff’s complaint as asserting two claims: (1) the
defendants improperly failed to evacuate the Larry Gist State Jail before Hurricane Ike made
landfall on September 13, 2008, and (2) the defendants subjected him to cruel and unusual
punishment with respect to conditions at the facility after the hurricane passed through the area.
The magistrate judge’s recommendation that this matter be dismissed was based on his conclusion

that this lawsuit is barred by the applicable statute of limitations. In reaching this conclusion, the
magistrate judge determined plaintiff’s claims arose, at the latest, on September 30, 2008.
In his objections, plaintiff states he is also attempting to assert a claim that he was denied
access to the courts and asserts this claim is not barred by the statute of limitations. The court
notes that the access to courts claim has been severed from this action and will proceed as a
separate lawsuit. As a result, the access to courts claim is no longer a part of this proceeding.
Plaintiff also appears to assert he is entitled to equitable tolling in this matter. He states
he is disabled due to blindness and requires visual aids and services. He states that for a period
of time, the defendants failed to provide him with prescription eyeglasses and magnifiers, which
prevented him from initiating this action. He states he began preparing this lawsuit in June and
July of 2010, when he was provided with eyeglasses and magnifiers.
Equitable tolling preserves a plaintiff’s claim where strict application of the statute of
limitations would be inequitable. Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995).
Equitable tolling is appropriate in cases where a plaintiff is actively misled by the defendant or is
prevented in some “extraordinary way” from asserting his rights. Rashidi v. American President
Lines, 96 F.3d 124, 128 (5th Cir. 1996). In order for equitable tolling to apply, a litigant must
diligently pursue his claim. Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999). “Equity
is not intended for those who sleep on their rights.” Fisher v. Johnson, 174 F.3d 710, 715 (5th
Cir. 1999).
Plaintiff is not entitled to equitable tolling. Even if it is assumed plaintiff was prevented
in an extraordinary way from asserting his claims, plaintiff did not diligently pursue his claims
after he was able to do so. He states he received the visual aids he needed in June and July of
2010. However, his complaint is dated July 13, 2011, approximately one year later. Litigants
who have waited this long to file a complaint have not been found to have diligently pursued their
claims. Schmitt v. Zeller, 354 F. App’x 950, 951 (5th Cir. 2009) (litigant not entitled to equitable
tolling after a delay of 10 months); Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) (litigant
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not entitled to equitable tolling after a delay of four months); Coleman v. Johnson, 184 F.3d 398,
402-03 (5th Cir. 1999) (litigant not entitled to equitable tolling after a delay of six months).1
Finally, plaintiff asserts he is proceeding under the American with Disabilities Act
(“ADA”) as well as 42 U.S.C. § 1983. However, claims brought pursuant to the ADA are subject
to same two year period of limitations applicable to claims brought pursuant to Section 1983.
Gibson v. Houston Launch Pad, 378 F. App’x 399, 400 (5th Cir. 2010) (citing Frame v. City of
Arlington, 575 F.3d 432, 437 (5th Cir. 2009)). Accordingly, plaintiff’s claims under the ADA
are also barred.
ORDER
Accordingly, plaintiff’s objections are OVERRULED.

The findings of fact and

conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is
ADOPTED. The motion to dismiss filed by defendant Goins is GRANTED. A final judgment
will be entered in this case in accordance with the magistrate judge’s recommendation.
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SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Beaumont, Texas, this 11th day of September, 2014.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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Plaintiff was a party to a putative class action concerning conditions at the Larry Gist State Jail after
Hurricane Ike made landfall. Garcia v. Goins, 1:09cv337 (E.D. Tex.). Plaintiff’s claims were severed into
another lawsuit, Marks v. Goins, 1:09cv582 (E.D. Tex.), that was dismissed for failure to state a claim after
plaintiff failed to file objections to a Report and Recommendation of United States Magistrate Judge. Plaintiff
states that if he had been provided with visual aids sooner, he would have been able to file objections to the
Report and Recommendation. However, if plaintiff believed he was improperly prevented from filing
objections in his prior lawsuit, he should have sought relief in that action by filing a motion for relief from
judgment. Any difficulties plaintiff may have experienced in litigating his prior lawsuit do not affect the
running of the period of limitations in this lawsuit and do not entitle him to equitable tolling.

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