Opinion
No. 7:99-CV-033-R
June 19, 2002
MEMORANDUM OPINION AND ORDER
Defendants John MeGuiness, Dalton Agnew, David Kincaid, Josie Grubbs/Smith and Clyde Hargrove have filed a motion to dismiss in this civil rights case. For the reasons stated herein, the motion is granted.
Mrs. Grubba is alternately referred to by both the plaintiff and counsel for defendants as Josie Smith. This confusion is apparently merely the result of a clerical error. See Letter from Plaintiff (received 12/26/2001).
I.
Plaintiff Michael Bias is an inmate in die Institutional Division of the Texas Department of Criminal Justice ("TDCJ"). On May 20. 1997 he was housed in the James Allred Unit. (Plf. Complaint ¶ V). Plaintiff alleges that he became unconscious that day after cutting his wrist and taking an overdose of medication. He was taken to the prison infirmary. (Id.) He stated that he was placed on the infirmary floor for two days without adequate medical attention. At some point, plaintiff lapsed into a coma. (Plf. Supp. Compl. ¶ 5). On May 22, 1997 he was transported to another prison unit. Upon his arrival, the medical staff ordered him transported to a local hospital. (Plf. Complaint ¶ V at 1-2). The doctors at the hospital informed plaintiff that he bad suffered tissue damage as a result of laying on his right side for too long a period of time without being moved or rotated. (Id.).
Plaintiff now sues defendants for civil rights violations under 42 U.S.C. § 1983. He alleges that defendants acted with deliberate indifference in failing to recognize his drug overdose and improperly transporting him. Plaintiff originally named as defendants three wardens, a doctor at the Alfred Unit and three John Doe prison guards. The Court dismissed the claims as frivolous. Plaintiff appealed. The Fifth Circuit affirmed the dismissal of the claims against the three wardens. The court also vacated the dismissal of the claims against the remaining defendants and remanded those claims for further proceedings. Bias v. Woods, et al., No. 99-10709 (5th Cir. Jan. 5, 2000).
After a series of motions and orders, plaintiff identified the three John Doe defendants as Capt. Hargrove, Lt. Hopton and Sgt. Smith on April 23, 2001. Hargrove subsequently filed an answer and a motion for summary judgment. On August 29, 2001 plaintiff sought leave to supplement his complaint to add Sgt. John McGuiness, Officer Dalton Agnew, Officer David Kincaid as additional defendants. On September 10, 2001 plaintiff again sought leave to amend his complaint to add Mrs. Josie Gnibbs as a defendant. The Court granted leave to add all four defendants on September 20, 2001.
Lt. Hopton and Sgt. Smith have never been served with process. The Court has entered a separate order dismissing the claims against them without prejudice. See FED. R. CIV. P. 4(m) (authorizing dismissal of defendant for failure to timely obtain service).
Defendants McGuiness, Agnew, Kincaid, Grubbs and Hargrove have now filed a joint motion to dismiss. They contend that the claims against them should be dismissed for failure to name and serve them within the applicable limitations period. The issues have been fully briefed by the parties and this matter is ripe for determination.
Plaintiff has filed three separate pleadings in response to defendant's motion to dismiss. The Court will refer to them respectively, in chronological order, as Plf. 1st Resp., Plf. 2nd Resp. and Plf. 3rd Resp.
II.
A motion to dismiss under Rule 12(b)(6) "is viewed with disfavor and is rarely granted. Lowrey v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997), quoting Kaiser Aluminum Chemical Sales, Inc. v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 103 S.Ct. 729 (1983). The complaint must be liberally construed in favor the plaintiff and all facts pleaded therein must be taken as true. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160. 1161, 122 L.Ed.2d 517 (1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Dismissal is warranted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995).
III.
Defendants contend that plaintiffs claims against them are barred by limitations. A civil rights action under 42 U.S.C. § 1983 is governed by a two-year statute of limitations. See Owens v. Okure, 488 U.S. 235, 250, 109 S.Ct. 573, 582, 102 L.Ed.2d 594 (1989) (federal court should look to general personal injury limitations period of forum state); Ali v. Higgs, 892 F.2.d 438, 439 (5th Cir. 1990) (limitations period in Texas is two years). A cause of action occurs on the date a plaintiff first becomes entitled to sue based upon a legal wrong committed by the defendant. Vaught v. Showa Denko K.K., 107 F.3d 1137, 1140 (5th Cir.), cert. denied, 118 S.Ct. 67 (1997).
The events underlying plaintiff's claims occurred on May 20-22, 1997. Plaintiff filed this lawsuit on February 24, 1999. However, the only defendant plaintiff identified by name in his original complaint was Dr. Nenita Sabater. Defendant Hargrove was not identified until April 23, 2001. Plaintiff did not seek to add McGuiness, Agnew and Kincaid as additional defendants until August 29, 2001. And he finally sought leave to add Grubbs as a defendant on September 10, 2001.
Plaintiff did not assert his claims against Hargrove, McGuiness, Agnew, Kincaid and Grubbs until four or more years after the events at issue. On their face those claims are clearly barred by limitations. The limitations bar would not, however, apply if the amendment by plaintiff naming them as defendants relates back to the date of the filing of the original complaint. See SMS Financial, lid. Liability Co. v. AECO Homes, Inc., 167 F.3d 235, 244 (5th Cir. (claim added by amendment after limitations period expired time barred if amended complaint does not relate back).
The relation back of amended pleadings is governed by Rule 15(c) of the Federal Rules of Civil Procedure. The file provides for relation back when:
the amendment changes the party or the naming of the party against whom a claim is asserted if [the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading] and, within the period provided by Rule 4(m) for service of r.he summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the parry.
FED. R. Civ. P. 15(c)(3). The Fifth Circuit limited the effect of the this mistake clause of Rule 15 in Jacobsen v. Osborne, 133 F.3d 315 (5th Cir. 1998). The plaintiff there argued that his amendment of the complaint to substitute a named party for a "John Doe" defendant should relate back to the date of the original complaint. The court disagreed, citing with approval decisions from other circuits holding that relation back should not apply because there was no "mistake" in identifying the correct defendant, rather, the problem was an inability to identify the defendant. Id. at 320-21.
In response, plaintiff contends that the defendants had notice of his suit. He asserts that when Dr. Sabater walked into the Allred Unit on May 23, 1997 all prison employees were "on constructive notice that they could be brought in on the complaint." (Plf. 1st Resp. at 6). Plaintiff further claims that the employees were notified when his retained attorney began requesting information regarding these events in September 1997. Plaintiff, however, misunderstands the nature of "notice." None of the defendants could have been "on notice" of a legal action which bad not yet been filed. See FED. R. Civ. P. 15(c)(3) (requiring notice of "institution of the action").
Plaintiff further maintains that the defendants had notice when he flied his action against other TDCJ employees within the limitations period. The Court did not order TDCJ to answer the complaint until May 1, 2000. There is no reason to believe that the employees had notice of the action prior to that point. Moreover, the application of relation back under Rule 15 requires both notice and a mistake. Plaintiff's arguments regarding notice are, therefore, unavailable.
Plaintiff also argues that the statute of limitations should be equitably tolled on several grounds. First, he contends that he diligently prosecuted his case. The Court acknowledges that in forma pauperis plaintiff has consistently sought to prosecute this action. However, although his status relieves him from the responsibility of effecting service, plaintiff is still responsible for providing sufficient information to serve the defendants. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (failure of indigent plaintiff to provide sufficient information to serve defendants sufficient to dismiss action for failure to obtain service). A review of the history of this case reveals that plaintiff himself notified the Court by motion tiled April 11, 2000 that service bad nor been effected on the defendants. He did nor, however, provide addresses or names of the John Doe defendants at that time. The Court first specifically ordered plaintiff to provide sufficient information to obtain service on the defendants on September 19, 2000. Rather than providing that information, plaintiff repeatedly sought extensions of time. He finally identified the John Does as Capt. Hargrove, Lt. Hopton and Sgt. Smith on April 23, 2001. Once again, plaintiff failed to provide sufficient information to serve Lt. Hopton and Sgt. Smith. Finally, on August 29, 2001 and September 20, 2001 plaintiff re-identified the John Doe defendants as Sgt. John McGuiness, Officer Dalton Agnew and Officer David Kincaid. He also sought leave to add Mrs. Josie Grubbs as a defendant. Although plaintiff never lost contact with the Court or failed to state his desire to continue prosecuting this case, he did not actually identify the even the first of the four defendants asserting a limitations bar until over two years after filing suit — nearly four years after the date his claim arose. These actions are far from diligent.
Second, plaintiff contends that the defendants concealed the identities of the defendants. in support, plaintiff points to a letter from the Texas Department of Criminal Justice dated July 20, 1998. In the letter, counsel for the department declined to provide plaintiff's then counsel with prison records on the basis that they were legally excepted from release. However, the letter continues by informing counsel that the records could be obtained with a request accompanied by a release from the plaintiff. (Plf. 2nd Reap. at Exit A). This communication in no way rises to the level of concealment on the part of the defendants.
Third, plaintiff argues that he was represented by counsel until November 1998. He was then forced to file this action pro se for monetary reasons. Neither plaintiff's pro se status, nor the fact of his incarceration, however, exempt him from compliance with the Federal Rules of Civil procedure. Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 2540 n. 46, 45 L.Ed.24 562 (1975) (right of self-representation does not exempt party from compliance with relevant rules of procedural and substantive law); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981) (procedural rules apply to pro se habeas petitioner). See also Barrow v. New Orleans S.S, Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) ("lack of knowledge of the filing deadlines," "lack of representation," "unfamiliarity with the legal process," and "ignorance of legal rights" generally do not justify tolling). He also notes that the fact that he was in a coma during the events in question rendered him unable to identify the defendants before discovery. Plaintiff was not, however, in a coma for long. His short term disability cannot be used to toll limitations long after the disability ended. Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989) (must, show diligence, because "equity is not intended for those who sleep on their rights."). Cf. Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) (equitable toiling applied to habeas applicant only if relief diligently pursued). Accordingly, the Court concludes that plaintiff has not shown that he is entitled to tolling of the limitations period.
CONCLUSION
Defendants' motion to dismiss is granted. Plaintiff has failed to name and serve the defendants within the applicable limitations period. Accordingly, the claims against these defendants are dismissed with prejudice.
The Court finds that there is no just reason for delay, and the district clerk will be directed to enter a final judgment as to all claims against Defendants Clyde Hargrove, John McGuiness, Dalton Agnew, David Kincaid and Josie Grubbs by separate order. See FED. R. Civ. p. 54(b).
SO ORDERED.