Opinion
Case No. 3:01 CV 7492
July 9, 2002
Barry Gauntt, #256-654, N.C.C.I., Marion, OH, Plaintiff Pro Se.
Scott M. Campbell, Office of the Attorney General State of Ohio, Columbus, OH, for Defendants Officer Miracle, John Morgan, and Larry Yoder.
ORDER
This is a civil rights case in which plaintiff Barry Gaunt, an inmate at North Central Correctional Institution ("NCCI"), alleges that defendant Officer Miracle used excessive force against plaintiff. This suit is brought under 42 U.S.C. § 1983 with jurisdiction arising under 28 U.S.C. § 1331. Pending is defendants' motion to dismiss. For the following reasons, the motion shall be granted.
BACKGROUND
Plaintiff Barry Gauntt is presently a prisoner at NCCI. Plaintiff alleges that on September 21, 1999, he reported to his work assignment as a chapel usher. Defendant Miracle ("Miracle"), a prison officer assigned to supervise the chapel area, for reasons unknown, attempted to restrain plaintiff and place him in handcuffs. Plaintiff alleges that, in the course of applying the handcuffs, Miracle used excessive force by "using the handcuff as a lever" to twist plaintiff's arm, injuring his shoulder and wrists.
Plaintiff filed an informal internal complaint dated September 21, 1999, and a formal complaint on October 1, 1999. Plaintiff alleges that these complaints were met with a deliberately inadequate investigation by defendants Yoder and Morgan, the inspector and Warden respectively, resulting in the disposition of his claim on October 12, 1999. Plaintiff further alleges that this action was the result of a "conspiracy to violate plaintiff's civil rights." Plaintiff did not, however, appeal the disposition.
Plaintiff originally filed suit on January 18, 2001. That claim was dismissed without prejudice on February 28, 2001, pursuant to 42 U.S.C. § 1997e for failure to exhaust all available administrative remedies because plaintiff did not appeal the disposition of October 12, 1999. Plaintiff responded by filing an appeal of the disposition on April 4, 2001, which was rejected as untimely.
Plaintiff now brings this second action based on the same set of facts.
STANDARD OF REVIEW
No complaint shall be dismissed unless the plaintiff has failed to allege facts in support of plaintiff's claim that, construed in plaintiff's favor, would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When deciding a motion brought pursuant to Fed.R.Civ.P. 12(b)(6), the inquiry is essentially limited to the content of the complaint, although matters of public record, orders, items appearing in the record, and attached exhibits also may be taken into account. See Yanacos v. Lake County, 953 F. Supp. 187, 191 (N.D.Ohio. 1996). The court must accept all the allegations stated in the complaint as true, Hishon v. King Spalding, 467 U.S. 69, 73 (1984), while viewing the complaint in the light most favorable to the plaintiff. Sheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court, however, is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
DISCUSSION
Plaintiff's complaint states that defendant Miracle used excessive force against him and that defendants Yoder and Morgan were deliberately inattentive in their investigation. Defendants argue that plaintiff's complaint must be dismissed under Rule 12(b)(6) for two reasons: 1) plaintiff failed to exhaust administrative remedies; and 2) plaintiff failed to comply with the statute of limitations regarding defendants Yoder and Morgan.
I. The Prison Litigation Reform Act
The Prison Litigation Reform Act ("PLRA") requires that prisoners exhaust available administrative remedies before they file suits regarding prison conditions. 42 U.S.C. § 1997e(a). In Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998), the court held that prisoners had the burden to "allege and show that they have exhausted all available state administrative remedies."
A. Whether the PLRA Requirements Apply
Plaintiff argues that the PLRA exhaustion requirements do not apply because the alleged actions do not qualify as "prison conditions."
The PLRA exhaustion requirements are, however, applicable. Under the PLRA, the term "prison conditions" includes alleged assaults on prisoners, even when those assaults are not part of any policy or pattern of conduct. Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 992 (2002), clarifies that, "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes." For plaintiff's action to proceed, he must show that he exhausted all available state administrative remedies. Brown, 139 F.3d at 1104.
B. Application of the Exhaustion Requirement
Plaintiff failed to exhaust his administrative remedies. While he did file an unsuccessful internal complaint regarding the September 25, 1999, incident, he failed to appeal its adverse disposition until April 4, 2001 — far beyond the five days allotted under O.A.C. § 5120-9-31(H)(8) for an appeal. His contention that he submitted a now "lost" timely appeal does not appear in the complaint. Regardless, the burden is on a plaintiff to show that he or she has fulfilled the exhaustion requirement. Brown, 139 F.3d at 1104. Plaintiff has not done so.
As far as plaintiff's appeal can be read as a complaint against Yoder, who was not named in the initial complaint, it is similarly deficient because it was filed more than 30 days from the alleged event — the assault or the disposition of his grievance. Plaintiff never filed any complaint against Morgan. As such, plaintiff failed to exhaust his administrative remedies either jointly or severally regarding all defendants.
Plaintiff's reliance on the court's statement of April 24, 2001, that "to the extent plaintiff asserts he has now exhausted administrative remedies, he may file a new action" is mistaken. The fact that his appeal is untimely cannot be overridden by the court, and the court did not implicitly do so. The fact that plaintiff is now incapable of meeting the PLRA requirements may be unfortunate, but the court cannot rewrite the filing requirements. Plaintiff's current complaint is no less deficient than the one dismissed on February 28, 2001.
Plaintiff's complaint shall be dismissed for failure to exhaust all administrative remedies.
II. Statute of Limitations
Plaintiff's complaint alternatively could be dismissed as to defendants Yoder and Morgan for falling outside the relevant statute of limitations.
Section 2305.10 of the Ohio Revised Code sets a two-year statute of limitations for § 1983 actions. Plaintiff admits that his complaint against defendants Yoder and Morgan falls outside the prescribed two years. He raises three reasons why the complaint is not barred by the statute of limitations: tolling, accrual, and commencement. None of these reasons is sufficient to escape the statute of limitations.
A. Tolling
Plaintiff's contention that his incarceration tolls the statute of limitations relies on outdated law. In § 1983 cases, federal courts must apply the tolling exemptions included in the relevant state law. Wilson v. Garcia, 471 U.S. 261, 268-69 (1985). While the Ohio Revised Code once included incarceration as an exception, it no longer does so. As it currently reads, O.R.C. § 2305.16 applies only to plaintiffs of "age of minority or of unsound mind." Plaintiff does not fall within this statutory exemption.
The dismissal without prejudice of his original claim also did not toll the statute of limitations. Section 2305.19 of the Ohio Revised Code states that, where a plaintiff's action is dismissed other than on the merits, and the statute of limitations has expired by the time of dismissal, the plaintiff shall have an extra year in which to re-file. Plaintiff's original case was dismissed on February 28, 2001, at which time the statute of limitations had not expired. Section 2305.19 thus does not apply. Plaintiff was required to file this second action by October 12, 2001, to fall within the statute of limitations.
Plaintiff's belief that his dismissal was "pending a demonstration that administrative remedies had been exhausted" misreads the court's earlier decision. In Jewell v. County of Nassau, 917 F.2d 738, 740 (2d Cir. 1990), the court explained, "Federal courts do have the power to toll statutes of limitations borrowed from state law, but only where application of the statute of limitations would frustrate the policy underlying the federal cause of action." The court did not intend to toll the statute of limitations, because doing so would have contravened the purpose of the PLRA, which largely was enacted to encourage quick resolution of inmate disputes. The statute was not, regardless, tolled by plaintiff's earlier litigation.
B. Accrual
Plaintiff argues that the doctrine of accrual applies because the relevant events did not cease on October 12, 1999.
The doctrine of accrual does not, however, apply to the present case. Plaintiff's complaint applies to specific actions alleged to have occurred between September 21, 1999, and October 12, 1999. His current assertion that misconduct is "ongoing . . . to this day" appears nowhere in the complaint and is superfluous to the instant claim. (Doc 17 at p. 5).
Because the amended complaint including defendants Yoder and Morgan was not filed until November 2, 2001, plaintiff's claims against them fall outside the two-year statute of limitations.
C. Commencement
Plaintiff argues that this action began when he filed his original complaint on January 18, 2001, bringing it within the statute of limitations.
Plaintiff's complaint, dated January 18, 2001, cannot be considered as commencement of the action. That case was dismissed without prejudice on February 28, 2001. In Wilson v. Grunmman Ohio Corp., 815 F.2d 26, 27 (6th Cir. 1987) (citations omitted), the court stated:
It is generally accepted that a dismissal without prejudice leaves the situation the same as if the suit had never been brought, and that in the absence of a statute to the contrary a party cannot deduct from the period of the statute of limitations the time during which the action so dismissed was pending.
Plaintiff's action against defendants Yoder and Morgan did not commence properly until the amended complaint of November 2, 2001.
Plaintiff's contention that his earlier suit put defendants Yoder and Morgan "on notice" contradicts the policies and principles underlying statutes of limitations. The fact that plaintiff did not re-file a suit naming them as defendants within the statutory period, while filing a timely suit against defendant Miracle must, in any event, have given exactly the opposite impression: that they were no longer involved in the dispute. Plaintiff simply failed to meet the statutory deadline regarding defendants Yoder and Morgan.
CONCLUSION
It is therefore,
ORDERED THAT
Defendants' motion to dismiss be, and hereby is, granted.
So ordered.