Opinion
Case No. 4:17-cv-39-CDL-MSH
03-08-2019
DENNIS LEWIS RILEY, Plaintiff, v. DARYL WARREN, et al., Defendants.
REPORT AND RECOMMENDATION
Pending before the Court is Defendants Ferguson, Stubb, and Warren's motion to dismiss Plaintiff's complaint (ECF No. 27). For the reasons explained below, it is recommended that Defendants' motion be denied.
BACKGROUND
Plaintiff's claims arise from his imprisonment at Rutledge State Prison in Columbus, GA. Recast Compl. 4, ECF No. 14. Plaintiff alleges that he began to feel weak and dizzy during a scheduled appointment with his mental health counselor on June 9, 2015. Id. Plaintiff's counselor immediately notified a nurse who instructed the counselor to call medical. Id. Plaintiff was escorted back to his cell, where he lost consciousness. Id. When he awoke, Plaintiff was being examined by two nurses. Id. Approximately two minutes later, Defendant Warren (the deputy warden of security) and other prison employees, including Defendants Stubb and Ferguson (members of the prison's CERT team), approached Plaintiff's cell. Id. According to Plaintiff, Defendant Warren accused Plaintiff of "faking" and ordered the nurses who were tending to Plaintiff to move aside. Id. Defendants Stubb and Ferguson then "ran into [Plaintiff's] cell," shackled his legs, and began to cuff Plaintiff's hands in front of him; but Defendant Warren stated, "No. That's too good for his fat ass. Flip him on his stomach and cuff him behind his back." Recast Compl 4. Plaintiff alleges that Defendant Stubb "grabbed" his right arm and "jerked it three times in an effort to turn [Plaintiff] over," dislocating Plaintiff's shoulder and tearing his rotator cuff. Id. at 4-5. Plaintiff states that Defendants Ferguson and Stubb then "lifted and flipped [Plaintiff] over, dropping [him] on his face causing [him] more pain" and further damaging Plaintiff's right arm. Id. at 5. Plaintiff alleges he was "prone on the floor unmoving" during this entire episode and that he ultimately required several surgeries to repair the damage to his arm. Id. at 4, 5.
Plaintiff contends Defendants' use of force was excessive and violated his constitutional rights. Id. at 4, 5. Plaintiff also states that "excessive force against a mental ill prisoner violates Plaintiff constitutional rights under the Americans with Disabilities Act." Attach. 1 to Recast Compl. at 1, ECF No. 14-1. Following preliminary review, only Plaintiff's excessive force claims against Defendants Warren, Stubb, and Ferguson remain. Order & R. & R. 1, ECF No. 16; Order adopting R. & R., ECF No. 22.
DISCUSSION
Defendants move to dismiss Plaintiff's claims arguing that they are barred by the applicable statute of limitations and the doctrine of qualified immunity, and, alternatively, that Plaintiff failed to state a relievable claim. Mot. to Dismiss 1, ECF No. 27. Because none of Defendants' arguments are sufficient to warrant dismissal at this stage, it is recommended that their motion to dismiss Plaintiff's remaining claims be denied.
The Court does not consider Defendants' arguments regarding the Eleventh Amendment and the Georgia Tort Claims Act because they are based on Plaintiff alleging additional, non-section 1983, claims which the Court has not read into Plaintiff's complaint. See Br. in Supp. of Mot. to Dismiss 16, ECF No. 27-1.
I. Statute of Limitations
Defendants argue that Plaintiff's claims against Defendant Ferguson are time barred, because the amended complaint in which Plaintiff first states his claims against Defendant Ferguson was submitted on September 26, 2017, "well beyond the limitations period." Br. in Supp. of Mot. to Dismiss 5, ECF No. 27-1. Because Plaintiff first sought leave to amend his complaint, such that it would include Defendant Ferguson, prior to the expiration of the limitations period it is recommended that Defendants' motion not be granted on this ground.
The forum state's limitation period applicable to personal injury actions is applied to actions brought under 42 U.S.C. § 1983. Wallace v. Kato, 549 U.S. 384, 386 (2007). The Georgia statute of limitations for personal injury is two years. O.C.G.A. § 9-3-33; see also Bell v. Metro. Atlanta Rapid Transit Auth., 521 F. App'x 862, 865 (11th Cir. 2013) ("The forum state's statute of limitations for personal injury actions applies to § 1983 claims, which in Georgia is two years.").
A statute of limitations begins to run when a cause of action accrues—in other words, when "the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights." Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003) (internal quotation marks and citation omitted). A plaintiff's untimely filing can be excused if the interests of justice weigh "in favor of allowing [him] to assert untimely claims" because "circumstances beyond [his] control prevented timely filing." Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006). However, such "equitable tolling" is "an extraordinary remedy which should be extended only sparingly." Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993).
Plaintiff's claims arise out of actions which allegedly occurred on June 9, 2015, and the Court finds no apparent tolling event occurred since the alleged incident. Therefore, the statute of limitations expired on June 9, 2017. Plaintiff filed his initial complaint (ECF No. 1) on February 13, 2017—well before the limitations period expired. Plaintiff's motion seeking leave to amend his original complaint (ECF No. 10) was docketed on May 17, 2017, also well before the limitations period expired. In the proposed amended complaint attached to that motion, Plaintiff mentions a "CERT Officer" named "Ferguson" as a defendant. Am. Compl. 1, ECF No. 10-1. On September 19, 2017, Plaintiff was ordered to recast his complaint, and specifically directed to clarify who he referred to when mentioning "Ferguson" in his proposed amendment. Order 3-4, ECF No. 13. Plaintiff's recast complaint was docketed on September 29, 2017 (ECF No. 14).
A plaintiff may amend their complaint "as a matter of course so long as no responsive pleading has been filed." Toenniges v. Georgia Dep't of Corr., 502 F. App'x 888, 889 (11th Cir. 2012); see Fed. R. Civ. P. 15(a)(1)(A)(B). A pro se plaintiff does not waive their right to amend as a matter of course "merely because [they] filed a motion to amend instead of amending as a matter of course." Toenniges, 502 F. App'x at 889. The Court has no discretion to reject an amended complaint submitted as a matter of course under Rule 15(a). Williams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1292 n.6 (11th Cir. 2007).
Here, Plaintiff submitted his amended complaint, which included "CERT Officer Ferguson" in the litigation, on May 17, 2017, along with his motion seeking leave to amend. Am. Compl. 1, ECF No. 10-1. That amended complaint was Plaintiff's to submit as a matter of course under the rules, and the Court had no discretionary authority to reject it. See Order 3, ECF No. 13 ("Plaintiff may amend his Complaint once as a matter of right as this point in the litigation[.]"); see also Williams, 477 F.3d at 1292 n.6. Accordingly, the Court considers Plaintiff's complaint to have been amended when he submitted his motion to amend, which included the amended complaint, because no review of its merits was necessary or even permitted before Plaintiff could amend his complaint in the manner sought. Shaw v. Lewis, No. 7:15-CV-162-HL, 2016 WL 9651770, at *3 (M.D. Ga. June 29, 2016), report and recommendation adopted, 2016 WL 9665156 (M.D. Ga. July 15, 2016), aff'd sub nom. Shaw v. Allen, 701 F. App'x 891 (11th Cir. 2017).
The undersigned recognizes that this Court has previously found that a ruling on the merits of a motion seeking the court's leave to amend is required before new claims can be considered filed for statute of limitations purposes. Heng v. Donald, No. 7-08-CV-5-HL, 2011 WL 925726, at *8 (M.D. Ga. Jan. 25, 2011), report and recommendation adopted as modified, 2011 WL 867556 (M.D. Ga. Mar. 14, 2011). However, this case is distinguishable. The plaintiffs in Heng filed a motion for leave to file a second amended complaint and thus did not have the right to amend their complaint once as a matter of course, as the Plaintiff did in this case. See Fed. R. Civ. P. 15(a)(2). Further, even if the plaintiffs in Heng had the right to amend their complaint as a matter of course per Rule 15(a), they were represented by counsel and waived that right by filing a motion to amend. In this case, however, Plaintiff is proceeding pro se and his filing of a motion to amend cannot waive his right to amend once as a matter of course. Toenniges v. Georgia Dep't of Corr., 502 F. App'x 888, 889 (11th Cir. 2012). The Court in Heng thus had the discretionary authority to reject the amended complaint that this Court did not.
II. Failure to State a Claim
Defendants next argue that Plaintiff has failed to state a relievable claim, because he has not make allegations sufficient to support an claim under 42 U.S.C. § 1983. Br. in Supp. of Mot. to Dismiss 9. Defendants essentially asks the Court to reverse its previous finding that Plaintiff's allegations were sufficient to support his excessive force claims. It is recommended that this request be rejected, and Defendant's motion to dismiss on grounds that Plaintiff has failed to state a claim be denied.
A complaint fails to state a claim if it does not include "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations in a complaint "must be enough to raise a right to relief above the speculative level" and cannot "merely create[] a suspicion [of] a legally cognizable right of action." Twombly, 550 U.S. at 555 (first alteration in original). As noted above, the Court, in screening Plaintiff's complaint, found his excessive force claims not "entirely devoid of merit" when construing his supporting allegations liberally and taking them as true—as the Court must do here as well. See Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Accordingly, it is recommended that Defendants' motion to dismiss for failure to state a relievable claim be denied.
III. Qualified Immunity
Defendants argue they are entitled to qualified immunity against Plaintiff's claims because Plaintiff "has failed to allege a violation of his constitutional rights" and Defendants "acted within their discretionary authority as prison officials" at all times relevant to Plaintiff's claims. Br. in Supp. of Mot. to Dismiss 13. The Court finds this argument to also be without merit and recommends it be rejected.
A. Standard
"[Q]ualified immunity completely protects government officials performing discretionary functions from suit in their individual capacities unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (internal quotation marks and citation omitted). "The purpose of qualified immunity is to allow officials to carry out discretionary duties without the chilling fear of personal liability or harrassive litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating federal law." McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009) (internal quotation marks and citation omitted).
"In order to receive qualified immunity, an official must first establish that he was acting within the scope of his discretionary authority when the alleged wrongful acts occurred." Id. To make that determination "a court must ask whether the act complained of, if done for a proper purpose, would be within, or reasonably related to, the outer perimeter of an official's discretionary duties." Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998). Once the defendant shows that he was acting within his discretionary authority, the burden then shifts to the plaintiff to establish that qualified immunity does not apply. Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2004). To meet this burden, Plaintiff must "show[] (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Wood v. Moss, -- U.S. --, 134 S. Ct. 2056, 2066-67 (2014) (internal quotation marks and citation omitted).
B. Analysis
Here, there is no dispute that Defendants were acting within their discretionary authority as prison officials. see, e.g., Roberts v. Spielman, 643 F.3d 899, 903 (11th Cir. 2011) (explaining that "discretionary authority" includes "all actions of a government official that (1) were undertaken pursuant to the performance of his duties, and (2) were within the scope of his authority") (internal quotation marks and citation omitted). Therefore, the burden shifts to Plaintiff to show that Defendant's actions were violative of his clearly established constitutional rights. The Court has already established that Plaintiff's allegations, if true, would constitute the violation of his constitutional rights, so the remaining inquiry is whether those rights were clearly established.
"To be clearly established, a right must be sufficiently clear that every reasonable official would [have understood] that what he is doing violates that right." Reichle v. Howards, 566 U.S. 658, 658 (2012) (internal quotation marks and citation omitted) (alteration in original). "In other words, existing precedent must have placed the statutory or constitutional question beyond debate." Id. (internal quotation marks and citation omitted). The Eleventh Circuit has explained that:
[a] right may be clearly established for qualified immunity purposes in one of three ways: (1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law.
Maddox v. Stephens, 727 F.3d 1109, 1121 (11th Cir. 2013). Furthermore, "[t]he inquiry whether a federal right is clearly established must be undertaken in light of the specific context of the case, not as a broad general proposition." Loftus v. Clark-Moore, 690 F.3d 1200, 1204 (11th Cir. 2012) (internal quotation marks and citation omitted). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable [state official] that his conduct was unlawful in the situation he confronted." Id. (quotation marks and citation omitted) (emphasis and alteration in original). The court should look "only to binding precedent—cases from the United States Supreme Court, the Eleventh Circuit, and the highest court of the state under which the claim arose—to determine whether the right in question was clearly established at the time of the violation." Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (citation omitted).
Crucially, the Eleventh Circuit has established that "a defense of qualified immunity is not available in cases alleging excessive force in violation of the Eighth Amendment, because the use of force maliciously and sadistically to cause harm is clearly established to be a violation of the Constitution by the Supreme Court." Skrtich v. Thornton, 280 F.3d 1295, 1300 (11th Cir. 2002) (citing Hudson v. McMillian, 503 U.S. 1 (1992)) (also citing Whitley v. Albers, 475 U.S. 312 (1986)). Accordingly, Defendants' motion to dismiss on grounds of qualified immunity should be denied.
CONCLUSION
For the reasons explained above, it is recommended that Defendants' motion to dismiss (ECF No. 27) be denied. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 8th day of March, 2019.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE