Lucky v. Haynes et al

Filing 80

Order Accepting 71 Findings, Conclusions, and Recommendation of the United States Magistrate Judge and granting 13 MOTION to Dismiss for Failure to State a Claim filed by Johnny Bliznak. (Ordered by Judge Jane J Boyle on 6/18/2013) (jrr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BOBBY DWAYNE LUCKY,
Plaintiff,
v.
SANDRA HAYNES, et al.,
Defendants.

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CIVIL ACTION NO. 3:12-CV-2609-B

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court are the Findings, Conclusions, and Recommendation (doc. 71) of United
States Magistrate Judge Paul D. Stickney, filed on June 4, 2013. The Findings recommend that the
Court grant Defendant Johnny Bliznak’s Motion to Dismiss Pursuant to Rule 12(b)(4), 12(b)(5), and
12(b)(6) (doc. 13). Plaintiff filed Objections (doc. 76) to the Findings, so the Court reviews the
Findings de novo. See Fed. R. Civ. P. 72(b)(3).
Defendant Bliznak moved to dismiss Plaintiff’s claims against him based on insufficient
process and service under Rule 12(b)(4) and (b)(5) and based on a failure to state a claim under Rule
12(b)(6) given that the two-year statute of limitations has passed. Doc. 13, Mot. at 2-3. The
Magistrate Judge concluded that the claims against Defendant Bliznak should be dismissed because
he was not properly served. Additionally, the Magistrate Judge concluded that, because Plaintiff was
aware of his claim against Bliznak by at least September 2001, the two-year limitations period had
run and 12(b)(6) dismissal was appropriate as to Bliznak.
In his Objections (doc. 76), Plaintiff admits that his claims against Defendant Bliznak should

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be dismissed, but requests that the claims be dismissed without prejudice to him refiling the same.
Plaintiff also requests that he be permitted to file amended pleadings to narrow his claims to the food
poisoning issue. The Court will not consider Plaintiff’s request to file amended pleadings at this time,
as such a request should be set out in a separate motion that comports with the Federal Rules of Civil
Procedure and the Local Rules. Further, any motion to amend pleadings must be addressed to the
Magistrate Judge, to whom the case has been referred for pre-trial management.
Plaintiff’s Objections appear to make one relevant argument to the Rule 12(b)(6) issue,
namely, that the continuous treatment doctrine applies to his cause of action against Bliznak since
Plaintiff has continued to suffer from his original condition. However, as noted in the Findings: “In
the usual personal injury case, the defendant’s wrongful conduct ceases on a certain day insofar as
it may be considered a cause of the injury in question. The cause of action accrues on that day,
although the plaintiff’s suffering may continue for months and years.” Adler v. Beverly Hills Hosp., 594
S.W.2d 153, 155 (Tex. Civ. App.–Dallas 1980, no writ). Plaintiff has not shown that Bliznak’s
alleged behavior continued past September 2001, so the continuous tort doctrine does not apply to
save Plaintiff’s claim from the two-year statute of limitations. The Court cannot discern any other
relevant objection by Plaintiff. Accordingly, the Court OVERRULES Plaintiff’s Objections.
It is therefore ORDERED that the Findings, Conclusions and Recommendation (doc. 71)
are ADOPTED and Defendant Bliznak’s Motion to Dismiss (doc. 13) is GRANTED.
SO ORDERED.
SIGNED: June 18, 2013.
_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

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