Johnson v. Tubbs et al
Filing
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MEMORANDUM DECISION AND ORDER granting 25 Motion to Dismiss for Failure to State a Claim. Case Closed. Signed by Judge Dee Benson on 3/1/13. (jlw)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
DEROYALE ARDEANE JOHNSON,
MEMORANDUM DECISION
AND ORDER
Plaintiff,
Case No. 2:11-CV-641 DB
v.
KENNON TUBBS et al.,
District Judge Dee Benson
Defendants.
Plaintiff, inmate DeRoyale ArDeane Johnson, filed this pro se civil rights suit under 42
U.S.C. § 1983. See 42 U.S.C.S. § 1983 (2013). Plaintiff was allowed to proceed in forma
pauperis. See 28 id. § 1915. Before the Court is Defendants’ Motion to Dismiss for Failure to
State a Claim. (Doc. No. 25.)
I. Introduction
Plaintiff’s Complaint alleges cruel and unusual punishment under the Eighth Amendment
based on Defendants’ alleged denial of medications and failure to provide adequate medical
treatment for a hernia Plaintiff suffered while in the custody of the Utah Department of
Corrections (UDC). The Complaint names as defendants in their individual capacities Dr.
Richard Garden, Director of medical services for UDC; Dr. Kennon Tubbs, a physician with
UDC; and, P.A. Jeffries, a Physician’s Assistant involved with Plaintiff’s care. Plaintiff seeks
compensatory damages, attorney fees and costs.
Defendants move to dismiss Plaintiff’s Complaint as untimely under the applicable
statute of limitations. Defendants further assert that Plaintiff’s allegations fail to state a viable
claim for relief under Section 1983, and that they are entitled to qualified immunity from
Plaintiff’s damages claims.
II. Legal Standard
A motion to dismiss under Rule 12(b)(6) requires the court to decide whether the factual
allegations made in the complaint, if true, would entitle the plaintiff to some sort of legal
remedy. To state a viable claim “[t]he complaint must plead sufficient facts, taken as true, to
provide ‘plausible grounds’ that discovery will reveal evidence to support the plaintiff’s
allegations.” Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007)). “Factual allegations [in a
complaint] must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). Or, in other words, the complaint
must include “enough facts to state a claim to relief that is plausible on its face.” Id.
Additionally, “the complaint must give the court reason to believe that this plaintiff has a
reasonable likelihood of mustering factual support for [his] claims.” Ridge at Red Hawk, L.L.C.
v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). The “requirement of plausibility serves not
only to weed out claims that do not (in the absence of additional allegations) have a reasonable
prospect of success, but also to inform the defendants of the actual grounds of the claim against
them.” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
When deciding a motion to dismiss the court must accept all well-plead facts as true and
draw reasonable inferences from those facts in favor of the non-moving party. Ridge at Red
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Hawk, L.L.C., 493 F.3d at 1177. However, legal conclusions, deductions, and opinions couched
as facts are not presumed to be true, and the court must disregard conclusory allegations without
supporting factual averments. See, e.g., Erikson v. Pawnee County Bd. of County Comm., 263
F.3d 1151, 1154-55 (10th Cir. 2001). When a civil rights complaint contains only “bare
assertions” involving “nothing more than a ‘formulaic recitation of the elements’ of a
constitutional . . . claim,” the court considers those assertions conclusory and does not afford
them the presumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009) (quoting
Twombly, 550 U.S. at 554-55).
III. Plaintiff’s Allegations
1.
Plaintiff is currently an inmate who resides at the Salt Lake County jail. (Compl.
2.
Defendant Dr. Garden is the head of the medical review board and is in charge of
at 1.)
the medical department at the Utah Department of Corrections (UDC). (Id.)
3.
Defendant P.A. Jeffries was responsible for screening Plaintiff’s health care
request forms (HCRs) or inmate care requests (ICRs). (Id. at 3.)
4.
Defendant Dr. Tubbs, was made aware of Plaintiff’s medical condition of a hernia
when Plaintiff was incarcerated at the Utah State Prison. (Id.)
5.
The UDC Medical Department, medical review board, reached the decision that
Plaintiff’s hernia was not severe enough for Plaintiff be seen by a specialist, and Plaintiff was
treated for his hernia related symptoms –chiefly acid reflux–with medication including Prilosec
and cinaminadine (sic). (Id. at 4.)
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6.
On May 2, 2007, Plaintiff’s housing assignment changed at UDC. Plaintiff’s
medication, Gabapentin, was confiscated from his cell and returned to the medical department to
be dispersed at pill-line. Defendant was told at pill-line that he would have to wait for the
pharmacy to refill another blister packet. (Id. at 5.)
7.
Plaintiff waited approximately six days until the refill blister packet was
dispensed by the pharmacy. (Id. at 4.)
8.
On or about May 8, 2007, Plaintiff began receiving Gabapentin again. During the
month of May and June 2007 Plaintiff went two days and then five days without receiving
Gabapentin due to alleged expiration and renewal problems with the prescription. (Id. at 6.)
9.
Plaintiff allegedly submitted HCRs on May 10, 2007, May 23, 2007, and May 31,
2007, and was seen by UDC medical staff on May 31, 2007. Plaintiff does not specifically state
why he submitted these HCRs. (Id. at 7.)
10.
On or about June 19, 2007, Plaintiff submitted an HCR asking to see a doctor and
stating that his hernia was causing severe pain when he sat down and stood up. (Id. at 7.)
Defendant P.A. Jeffries was the person who reviewed the HCR and, following standard nonemergency HCR protocol, saw Plaintiff regarding his hernia on June 28, 2007. (Id.)
11.
During P.A. Jeffries’ examination of Plaintiff in his cell on June 28, 2007, Jeffries
observed that Plaintiff’s hernia had turned hard. (Id. at 9.) Based on this observation Plaintiff
was immediately sent to the Wasatch Medical Unit infirmary to be further examined by Dr.
Tubbs, who had treated Plaintiff for his hiatal hernia since 2005. (Id. at 8.)
12.
Dr. Tubbs ordered that Plaintiff be taken directly to the University of Utah
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Medical Center (UUMC) for further treatment. (Id. at 9.)
13.
At UUMC Plaintiff underwent a C.T. scan which showed that he had a left ventral
hernia with an obstruction. Plaintiff received immediate surgery to repair the hernia. (Id.)
14.
Plaintiff subsequently filed prison grievances regarding the denial of medications
during May and June 2007 and the allegedly inadequate hernia diagnosis and treatment leading
up to the surgery on June 28, 2007. Plaintiff’s grievance remedies regarding the hernia treatment
were exhausted in November 2007, and the medication grievances were exhausted in December
2007. (Id. at 12.)
IV. Statute of Limitations
Claims under 42 U.S.C. § 1983 have a statute of limitations equal to the “personal injury
statute of the state in which the federal district court sits.” Mondragon v. Thompson, 519F.3d
1078, 1082 (10th Cir. 2008). It is well-settled that in Utah such claims are subject to the fouryear residual statute of limitations found in Section 78B-2-307 of the Utah Code. Utah Code
Ann. § 78B-2-307 (West 2013); Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). Although
the limitations period is based on state law, federal law determines when a cause of action
accrues and when the limitations period starts to run. Mondragon,519 F.3d at 1082. The Tenth
Circuit has held that claims accrue when “the facts that would support a cause of action are or
should be apparent.” Fratus, 49 F.3d at 675 (citations and quotations omitted).
Defendants assert that Plaintiff’s claims are barred under the applicable statute of
limitations because they accrued more than four years before Plaintiff brought this suit.
Defendants contend that Plaintiff’s claims regarding denial of medications accrued during May
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and June 2011, when the denials allegedly occurred; and, that any claims related to treatment of
Plaintiff’s hernia accrued no later than June 28, 2007, when Plaintiff underwent surgery. The
record shows that Plaintiff’s Complaint was signed on July 1, 2011, postmarked July 7, 2011,
and was received by the Court the following day.1 Thus, absent tolling, Plaintiff’s claims were
not timely filed.
Plaintiff does not dispute that his claims accrued no later than June 28, 2007, and that his
Complaint cannot be deemed to have been filed prior to July 1, 2011.2 (Pl.’s Resp. Mot. Dismiss
(Doc. No. 28), at 2.) Plaintiff’s only argument against dismissal is that because he was required
under the Prisoner Litigation Reform Act to exhaust all available administrative remedies prior
to filing suit, the limitation period should be tolled during the pendency of his prison grievances.
However, Plaintiff has not offered any legal support for this argument. In fact, as recently as last
year the Tenth Circuit expressly rejected this position, holding that exhaustion of administrative
remedies does not toll a statute of limitations. See Jackson v. Standifird, No. 11-5126, 463 Fed.
Appx. 736, 738, 2012 WL 29053, at **2 (10th Cir. Jan. 6, 2012) (unpublished) (affirming
district court’s rejection of plaintiff’s claim that the statute of limitations was tolled while he
exhausted administrative remedies). Thus, Plaintiff’s tolling argument based on the
1
Due to processing of Plaintiff’s motion to proceed in forma pauperis, the Complaint
was not filed until July 18, 2011. However, the delay between receipt and filing has no bearing
on the timeliness of Plaintiff’s suit.
2
Even under the “prison mailbox rule,” which provides that pro se prisoner’s pleadings
are deemed filed when delivered to prison officials for forwarding to the district court, see
Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385 (1988), Plaintiff’s Complaint could
not be considered filed prior to July 1, 2011, the date on which he signed the document.
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administrative exhaustion requirement is unavailing.
In the absence of any other argument for tolling the limitations period on Plaintiff’s
claims the Court concludes that Plaintiff’s Complaint must be dismissed for failure to comply
with the applicable statute of limitations. Based on this conclusion the Court will not consider
Defendants’ additional grounds for dismissal.
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ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) Defendants’ Motion to Dismiss (Doc. No. 25) is GRANTED; and,
(2) this case is CLOSED.
DATED this 1st day of March, 2013.
BY THE COURT:
_________________________________
DEE BENSON
United States District Judge
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