Opinion
CASE NO. 1:13cv1630
12-03-2014
EMERSON M. ANDERSON, PLAINTIFF, v. DAVID LESS, et al, DEFENDANTS.
ORDER
On July 26, 2013, pro se plaintiff Emerson M. Anderson filed a complaint in the above titled action seeking damages and injunctive relief pursuant to 42 U.S.C. § 1983 against seven defendants: David Less, medical personnel at the Ohio Department of Rehabilitation and Correction ("ODRC"); Gina Maddox and Mona Parks, registered nurses at ODRC; Ron Pawlus, a staff member at ODRC; and "Un-Named #1," "Un-Named #2" and "Un-Named #3," medical staff at ODRC. (Doc. No. 1 ["Compl."] at 3-6.) Anderson alleged that defendants denied him medical treatment in violation of his rights under the Eighth and Fourteenth Amendments. (Id. at 2.)
The Court dismissed Anderson's complaint upon initial screening pursuant to 28 U.S.C. § 1915(e). (Doc. No. 7.) Anderson appealed. On September 19, 2014, the Sixth Circuit affirmed in part, reversed in part, and remanded the case for further proceedings. (Doc. No. 14 ["Opinion"].) The Sixth Circuit found that Anderson stated a claim for deliberate indifference against Un-Named #2 only. (Opinion at 123-25.) With respect to the remaining defendant—Un-Named #2—the Sixth Circuit stated:
We note that although this court's authority permits a plaintiff to name an unidentified "Jane Doe" defendant as a placeholder, Brown v. Owens Corning Inv. Review Comm., 622 F.3d 564, 572 (6th Cir. 2010), those defendants are entitled to notice that they are subject to suit within the applicable limitations period, Smith v. City of Akron, 476 F. App'x 67, 69-70 (6th Cir. 2012). Civil rights suits have a two-year statute of limitations in Ohio. Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir. 2003). Because the alleged violation occurred November 1, 2012, Anderson must identify Un-Named #2 before November 1, 2014 in order to preserve his claim against her.(Id. at 125.)
On October 1, 2014, Anderson filed in the Sixth Circuit a "Petition For Panel Rehearing" (Sixth Circuit Court of Appeals Case No. 14-3167, Doc. No. 19), a "Motion For Extension of Time to Provide For Name of Un-Named Defendants" (Id., Doc. No. 20), and a "Motion for Discovery to Provide For Name of Un-Named Defendants" (Id., Doc. No. 21). On November 4, 2014, the Sixth Circuit denied Anderson's "petition for rehearing and pending motions[.]" (Id., Doc. No. 22.)
To date, Anderson has not identified Un-Named #2. This Court's reading of the Sixth Circuit's Opinion on Remand required Anderson to identify un-Named # 2 before November 1, 2014. Because Anderson failed to identify Un-Named #2 by November 1, 2014, as directed by the Sixth Circuit, his claim against Un-Named #2 is dismissed. Having dismissed the only remaining claim in the complaint, the Court directs the Clerk to close this case. Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED. Dated: December 3, 2014
/s/_________
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE