United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
Kent, United States Magistrate Judge
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 filed a motion for summary judgment (ECF
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.
(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).
Dr. Gerlach's motion to dismiss
Statute of limitations
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).
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
Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000).
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
Failure to state a claim
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
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.
survive a motion to dismiss brought pursuant to Fed.R.Civ.P.
[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
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal citations omitted).
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 ...