Opinion
C.A. No. 02-323 S
March 3, 2003
Report and Recommendation
Plaintiff Bernardo Figueroa, pro se, in the custody of the Rhode Island Department of Corrections but currently confined at an out of state confinement facility, has filed a Complaint pursuant to 42 U.S.C. § 1983, § 1985, and § 1986. Defendants A.T. Wall and Joseph Marocco have moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has objected. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that defendants Wall and Marocco's motion to dismiss be granted.
Background
The following are the factual allegations contained in the Complaint, which are taken as true for purposes of this instant motion:
In 1991, the Rhode Island Department of Corrections confined the plaintiff at the Adult Correctional Institutions ("ACI"), Cranston, Rhode Island. During 1991, the medical staff at the ACI diagnosed the plaintiff as having an eye condition, that would require surgery. On November 10, 1992, ACI personnel transported the plaintiff to Rhode Island Hospital in order to undergo eye surgery. Dr. Petashnick, a doctor at Rhode Island Hospital, performed the surgery. Following his November 10, 1992 surgery, the ACI transported the plaintiff to Rhode Island Hospital on numerous occasions. During these visits, the doctors however, examined his ears.
In 1997, plaintiff began to experience pain and discomfort in his ears. He complained to the medical staff at the ACI about this discomfort. Dr. Scott Allen, a doctor at the ACI, examined the plaintiff an administered a shot of penicillin. The penicillin caused an adverse reaction and the plaintiff was immediately transported to Rhode Island Hospital. Once at Rhode Island Hospital, plaintiff informed a nurse that he was in fact allergic to penicillin. The nurse examined the plaintiff and allegedly informed him that something was implanted in his ears.
Plaintiff was thereafter returned to the ACI, where he began to complain to the medical staff about the device allegedly implanted in his ears. He filed grievances and sought to have the device removed on numerous occasions. The ACI denied the grievances, denied the existence of an implanted device, and referred the matter to Dr. Matola, an in house doctor at the ACI. Dr. Matola thereafter examined the plaintiff, noted that he had an ear infection, and prescribed medication.
On August 5, 1999, the plaintiff was transferred from the ACI to a correctional facility in Virginia where he is now confined. While confined in Virginia, plaintiff continued to complain about discomfort in his ears. X-rays were taken which purportedly revealed the implanted device. Plaintiff was seen by a doctor and he prescribed medication, which plaintiff asserts he never received. Plaintiff further contends that the Virginia prison refuses to further treat his ears.
Based upon these factual averments, plaintiff seeks relief pursuant to 42 U.S.C. § 1983, § 1985, § 1986, claiming that the conduct of November 10, 1992, violated his federal rights when this device was implanted in his ears. For the reasons that follow, defendants' motion to dismiss should be granted.
Discussion
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of actions which fail to state a claim upon which relief can be granted. In ruling on a motion filed under Rule 12(b)(6), the court must "accept the well pleaded averments of the *** complaint as true, and construe these facts in the light most favorable to the [plaintiff]."Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir. 1987). A rule 12(b)(6) motion will only be granted when, viewed in this manner, it appears beyond a 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, 45-6 (1957). Under a Rule 12(b)(6) motion, "a reviewing court is obliged neither to credit bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation, nor to honor subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir. 1992). Unverifiable conclusions, not supported by the stated facts, deserve no deference. Id. Here, Marocco and Wall assert that the instant action is barred by the relevant statute of limitations periods. I agree.
The Supreme Court has directed federal courts adjudicating civil rights claims under 42 U.S.C. § 1983 to borrow the statute of limitations applicable to personal injury actions under the law of the forum state.Wilson v. Garcia, 471 U.S. 261, 276-280 (1985). Where a state has more than one personal injury statute of limitations, a federal court should borrow a state's general or residual personal injury statute of limitations. Owens v. Okure, 488 U.S. 235, 249-250 (1989). A state's personal injury statute of limitations also applies in claims made pursuant to 42 U.S.C. § 1985. See e.g. Callwood v. Questel, 883 F.2d 272, 274 (3rd Cir. 1989). In Rhode Island, the relevant statute is R.I. Gen. Laws 9-1-14, which provides, in pertinent part:
(b) Actions for injuries to the person shall be commenced and sued within three (3) years next after the date the cause of action shall accrue, and not after.See R.I. Gen. Laws 9-1-14(b).
The question of when a cause of action accrued is a matter of federal law. Rodriguez Narvaez v. Nazario, 895 F.2d 38, 41 n. 5 (1st Cir. 1990). The accrual period begins to run when the plaintiff knows or has reason to know of the injury which is the basis of the action. Torres v. Superintendent of Police, 893 F.2d 404, 407 (1st Cir. 1990). Here, plaintiff complains that the defendants implanted some sort of device in his ears. Plaintiff alleges in his complaint the he became aware of this implanted device sometime in 1997. Plaintiff however did not file the instant cause of action until July 22, 2002, beyond the three year period. Accordingly, plaintiff's claims made under §§ 1983 and 1985 are time barred.
Similarly, plaintiff's claims made under 42 U.S.C. § 1986 are also time barred. A claim made pursuant to § 1986 must be commenced within one year after the cause of action has accrued. See 42 U.S.C. § 1986;Creative Environments, Inc. v. Estabrook, 491 F. Supp. 547, 554 (D.Mass. 1980). As set forth above, plaintiff was aware of, or should have been aware of his claims in 1997. He did not file suit until 2002, well past the one year limitation period imposed for claims made pursuant to § 1986. Accordingly, plaintiff's claims made under § 1986 are time barred.
Conclusion
Accordingly, for the reasons stated above, I recommend that defendants Wall and Marocco's motion to dismiss be granted. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).