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Brown v. Smith

United States District Court, W.D. Michigan, Southern Division

February 23, 2018

DAVIS BROWN, Plaintiff,
v.
WILLIE SMITH, et al., Defendants.

          REPORT AND RECOMMENDATION

          Ray Kent, United States Magistrate Judge

         This is a pro se civil rights action brought by a state prisoner at a Michigan Department of Corrections (MDOC) facility pursuant to 42 U.S.C. § 1983. The Court's case management order (CMO) (ECF No. 37) required that all discovery be completed by May 30, 2017, and all motions for summary judgment be filed by June 27, 2017. The parties inundated the Court with motions, including requests for extensions of time, which resulted in the Court ordering on June 26, 2017, that all discovery and motion deadlines in the CMO were to be stayed until the pending motions (ECF Nos. 38, 50, 55, 58, 60, 65, 72, and 74) were resolved and that defendant Dr. Gerlach could file a dispositive motion 90 days after the Court decided his motion to dismiss (ECF No. 74). See Order (ECF No. 77). The intent of that order was to cease all further discovery and motion practice in the case until the Court could resolve the outstanding motions. On the same date that the Court entered this order, Dr. Chad Linsley[1] filed a motion for summary judgment (ECF No. 79).

         Upon further review, the Court determined that this case was unmanageable in its present form, and severed all claims except the Eighth Amendment deliberate indifference claims alleged against three doctors, i.e., Dr. Doyle, Dr. Gerlach, and Dr. Linsley. See Order (ECF No. 84). Plaintiff has a medical condition known as keratoconus, which he alleged is a corneal degenerative disease which causes blindness. Amend. Compl. (ECF No. 8, PageID.77). Plaintiff also alleged that he is “completely blind in the left eye, and partially blind in the right.” Id. The Court identified seven claims alleged against these three defendants related to this condition:

[P]laintiff's allegations involve Eighth Amendment claims for deliberate indifference to serious medical needs as follows: (1) prior to 2016, Dr. Gerlach failed to prescribe a cane; (2) in February, March and April 2016, Dr. Doyle failed to prescribe a cane; (3) in 2012, Dr. Gerlach obstructed or prevented recommended cornea surgery (4) in 2012, Dr. Gerlach failed to provide plaintiff with appropriate contact lenses; (5) in 2010, 2013 and 2015, Dr. Doyle and Dr. Lindsey failed to provide plaintiff with appropriate contact lenses which caused swelling of his cornea; (6) on July 13, 2016, Dr. Lindsey told plaintiff that he would be receiving contact lenses but plaintiff did not receive the lenses; and, (7) from March 2015 through sometime in 2016, Dr. Doyle denied or failed to provide plaintiff with prescription sunglasses.

         Order (ECF No. 84, PageID.702-703). This order severing claims resulted in the dismissal without prejudice of five motions (ECF Nos. 38, 50, 58, 65, and 72), leaving three motions for decision: Dr. Doyle's motion for summary judgment (ECF No. 55); Dr. Gerlach's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 74); and Dr. Linsley's motion for summary judgment (ECF no. 79). Id.[2]

         II. Dr. Gerlach's motion to dismiss

         A. Statute of limitations

         Dr. Gerlach contends that plaintiff's claims against him are barred by the statute of limitations and should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). “A complaint is subject to dismissal without any further proof if ‘the allegations . . . show that relief is barred by the applicable statute of limitations.'” Surles v. Andison, 678 F.3d 452, 458 (6th Cir. 2012), quoting Jones v. Bock, 549 U.S. 199, 215 (2007).

Although an affirmative defense is generally not the proper subject of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “[a]n affirmative defense may be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment procedure, if the defense appears on the face of the complaint.” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir.1998) (citing ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir.1994)); see also Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 775 n. 3 (5th Cir.1997) (stating that “certain affirmative defenses that clearly appear on the face of the plaintiff's complaint-most commonly that the statute of limitations has run-may properly be asserted in a Rule 12(b)(6) motion”). The Sixth Circuit adheres to this rule as well. See Pierce v. Oakland Cnty., 652 F.2d 671, 672 (6th Cir.1981) (holding that an affirmative defense is not waived even if not pled where it appears on the face of the complaint and is asserted by the defendant in a Rule 12(b)(6) motion to dismiss).

Patton v. Village of Cassopolis, No. 1:13-cv-124, 2013 WL 3929989 at *1 (W.D. Mich. July 29, 2013).

         The statute of limitations for a § 1983 claim in Michigan is three years, based upon Michigan's three-year statute of limitations for injury to a person or property, M.C.L. § 600.5805(10). Chippewa Trading Company v. Cox, 365 F.3d 538, 543 (6th Cir. 2004). The statute of limitations which applies to a prisoner's § 1983 civil rights action is tolled for the period during which the prisoner exhausts his state administrative remedies. See Waters v. Evans, 105 Fed.Appx. 827, 829 (6th Cir. 2004).

The Prison Litigation Reform Act amended 42 U.S.C. § 1997e to provide: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (1999) (emphasis added). This language unambiguously requires exhaustion as a mandatory threshold requirement in prison litigation. Prisoners are therefore prevented from bringing suit in federal court for the period of time required to exhaust “such administrative remedies as are available.” For this reason, the statute of limitations which applied to [the prisoner's] civil rights action was tolled for the period during which his available state remedies were being exhausted.

Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000).

         Here, Dr. Gerlach's motion to dismiss should be denied because the statute of limitations defense is not clear from the face of the complaint. First, plaintiff did not allege specific dates when these actions occurred. Second, the Court does not accept Dr. Gerlach's conclusion that plaintiff's statute of limitations is tolled by a maximum of 150 days, which the doctor explains as “the maximum amount of time the MDOC policy allowed for the completion of the grievance process through Step III, including extensions . . . (120 days plus two 15-day extensions).” Gerlach Brief (ECF No. 74, PageID.638). This tolling argument has been rejected “because it is contrary to sound policy: if a grievance did not toll the limitations clock during the entire grievance process, the prison, upon receiving a grievance could, through its own dilatory practices, wait out the limitations period.” See, e.g., Davis v. Straub, No. CIV.A. 10-14397, 2011 WL 2433398 at *7 (E.D. Mich. May 10, 2011), R&R adopted, No. 10-14397, 2011 WL 2415357 (E.D. Mich. June 13, 2011) (prisoner's statute of limitations should be tolled from the date the prisoner completed the Step I grievance form until the dated the MDOC approved the Step III grievance response, which in that case was 316 days). Given the tolling language in Brown (“the statute of limitations which applied to [the prisoner's] civil rights action was tolled for the period during which his available state remedies were being exhausted”) and the policy considerations recognized in Davis, the undersigned concludes that the cause of action should be tolled during the actual time that it took for plaintiff to complete the grievance process, i.e., the date plaintiff submitted the Step I grievance form until the date the MDOC approved the Step III appeal. The relevant facts to determine tolling are not before the Court. Accordingly, Dr. Gerlach's motion to dismiss should be denied with respect to the statute of limitations defense.

         B. Failure to state a claim

         As discussed, the Court identified three claims against Dr. Gerlach: prior to 2016, Dr. Gerlach failed to prescribe a cane; in 2012, Dr. Gerlach obstructed or prevented recommended cornea surgery; and, in 2012, Dr. Gerlach failed to provide plaintiff with appropriate contact lenses. Dr. Gerlach seeks to dismiss these claims pursuant to Fed.R.Civ.P. 12(b)(6).

         Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which “provides a civil cause of action for individuals who are deprived of any rights, privileges, or immunities secured by the Constitution or federal laws by those acting under color of state law.” Smith v. City of Salem, Ohio, 378 F.3d 566, 576 (6th Cir. 2004). To state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840 F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983.

         To survive a motion to dismiss brought pursuant to Fed.R.Civ.P. 12(b)(6),

[A] complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).

         In making this determination, the complaint must be construed in the light most favorable to the plaintiff, and its well-pleaded facts must be accepted as true. Morgan v. Churchs Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). The Court “may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. National Collegiate Athletic Association, 528 F.3d 426, 430 (6th Cir. 2008). Finally, pro se complaints, like the one filed in this case, “are to be held to less stringent ...


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