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Smith v. Dozier

United States District Court, M.D. Georgia, Macon Division

July 24, 2018

LESTER J. SMITH, Plaintiff,
v.
GREG DOZIER, SHARON LEWIS, HOMER BRYSON, DAVID EKWUNIFE, AUGUSTA UNIVERSITY, CHARLES BURKE, and BROOME, Defendants.

          ORDER ADOPTING UNITED STATES MAGISTRATE JUDGE'S RECOMMENDATION

          TILMAN E. SELF, III, UNITED STATES DISTRICT COURT JUDGE

         Before the Court for consideration is the United States Magistrate Judge's Recommendation [Doc. 104] that the Motion to Dismiss [Doc. 28] filed by Defendants Greg Dozier, Homer Bryson, Dr. Sharon Lewis, Dr. David Ekwunife and Augusta University be granted. The United States Magistrate Judge further recommends that the Motion to Dismiss [Doc. 71] filed by Defendant Dr. Charles Burke be granted as well. Plaintiff filed a timely Objection[1] [Doc. 106] to the Recommendation [Doc. 104]. Therefore, the Court must “make a de novo determination of those portions of the . . . recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).

         Plaintiff bases his § 1983 claims on a denial of proper treatment for his HCV condition. See [Doc. 63, at 5]. As to the Recommendation [Doc. 104], Plaintiff first objects to the Magistrate Judge's finding that his claims are time-barred and do not qualify for the continuing violation doctrine. See [Doc. 106, at 1]. Second, Plaintiff objects to the Recommendation [Doc. 104] denying Plaintiff's request of injunctive relief for treatment of his “Hepatitis-C (HCV for ‘hep-c virus['])” illness based on the United States Magistrate Judge's finding that Plaintiff “did not meet the requisites prior to the [Recommendation] ruling.” [Doc. 63, at 2]; see also [Doc. 106, at 5]. Specifically, Plaintiff states that “the only issue would be number 1 of the four requisites” discussed in Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985) and contends that the “requisites” are “the purpose of said injunction.” [Doc. 106, at 5]; see also [Doc. 104, at 6]. Third, Plaintiff objects to the United States Magistrate Judge's Recommendation [Doc. 104] that the Court decline to exercise its supplemental jurisdiction over Plaintiff's state law claims. See [Doc. 106, at 6]. After review of the Recommendation [Doc. 104], Plaintiff's Objection [Doc. 106], and Plaintiff's Supplemental Objection [Doc. 107], the Court finds that the objections raised by Plaintiff fail to overcome the findings and conclusions of the United States Magistrate Judge for the following reasons:

         1. Objection that Plaintiff's Claims Do Not Qualify for the Continuing Violation Doctrine

         The Amended Complaint [Doc. 63] in this case, dates “June 29, 2015, ” as the latest point of time in which the American Association for the Study of Liver Diseases (“AASLD”) and the Infectious Diseases Society of America (“IDSA”) made certain recommendations of change in drug protocols for people with HCV. [Doc. 63, at 4; n.2]. Though, in Plaintiff's original Complaint [Doc. 1], he mentions that “[i]n October 2013, the FDA announced a new ‘breakthrough cure' direct acting antiviral (DAA) drugs to cure all levels of HCV.” [Doc. 1, at 8]. Curiously, however, Plaintiff contends that he was “not aware of any change of the HCV mandate of treatment, until 2015 or so.” [Doc. 106, at 1].

         Normally, an amended complaint supersedes former pleadings, which are “abandoned” and “become a legal nullity.” Fed.R.Civ.P. 10(c); Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016). Eleventh Circuit law “do[es] not permit a district court to consider, on a motion to dismiss, exhibits attached to an earlier complaint that a plaintiff has expressly disavowed or rejected as untrue in a subsequent amended complaint.” Hoefling, 811 F.3d at 1277. In the instant matter, however, Plaintiff does not appear to disavow the attachments, or anything for that matter, to his original Complaint [Doc. 1]. In fact, Plaintiff expressly states that “[He] will refer back to his initial complaint that the AASLD/IDSA standard of HCV care, is mandatory for all M.D.'s without having to reiterate that fact.” [Doc. 63, at 4].

         The same paragraph in the original Complaint [Doc. 1] that mentions the requirement that “all physicians [and] M.D.'s [] abide by this new Community Standard of Professional Medical Care Standard for HCV treatment, with the new cure medicines only” also mentions the “October 2013” date. [Doc. 1, at 8-9]; see also [Doc. 1, at 20] (“Plaintiff having requested treatment with the new FDA drugs since December 2013, confirmed in 2014, and established by the AASLD, IDSA as the Community Standard of Professional Medical Case in January 2014.”). Thus, as the United States Magistrate Judge correctly found, Plaintiff's injury clearly occurred in 2013, not 2015. See [Doc. 104, at 5].

         Plaintiff's Objection [Doc. 106] argues that “[t]he Magistrate [Judge] [relying on the 2013 date, ] errored [sic] in its finding that the continuing violation doctrine is not applicable to plaintiff.” [Doc. 106, at 2]. He further argues that “[i]t is impossible per the laws verbatim, that this doctrine is not applicable to plaintiff.” [Id. at 3]. It is obvious that Plaintiff bases this contention on the alleged fact that prison officials “did not at any time cease their unlawful acts of denying plaintiff treatment to his serious medical need.” [Id.]

         However, as the Recommendation [Doc. 104] suggests, the Eleventh Circuit has “limited the application of the continuing violation doctrine to situations in which a reasonably prudent plaintiff would have been unable to determine that a violation had occurred.” Center for Biological Diversity v. Hamilton, 453 F.3d 1331, 1335 (11th Cir. 2006). In other words, “[i]f an event or series events should have alerted a reasonable person to act to assert his . . . rights at the time of the violation, [he] cannot later rely on the continuing violation doctrine.” Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1222 (11th Cir. 2001). In his Supplemental Objection [Doc. 107], [2] Plaintiff states, supposedly in an effort to overcome the Eleventh Circuit's limitation of the continuing violation doctrine, that he was “not a ‘prudent Plaintiff' aware of a right being violated” and “was still under the impression of the old HCV treatment in effect, and not superseded.” [Doc. 107, at 1]. Reasonableness is an objective standard and the Court does not assess whether Plaintiff subjectively believes that he is not a reasonably prudent plaintiff. Alternatively, the Court consides whether a hypothetical reasonably prudent plaintiff would be able to determine that a violation occurred.[3]

         As discussed above, Plaintiff's first awareness of some drug protocol change occurred in 2013. Given that Plaintiff himself stated in his original Complaint [Doc. 1] that he has requested treatment “with the new FDA drugs since December 2013, ” it is clear he was aware of an alleged denial of medical care that comported with the community standard in 2013. Now, however, Plaintiff contends in his Amended Complaint [Doc. 63], that he “did not have [f]actual knowledge until 2015, of the change in drugs for HCV.” [Doc. 106, at 3]. He undoubtedly admits in his Objection [Doc. 106] that he “may have heard by way of a rumor in 2013, but not of a [sic] actual fact” and as a result his “uncertainty in 2013 is of no essence.” [Id.]. In addition to this argument, Plaintiff avers in his Response [Doc. 82], that the requested 2013 standards of medical care, were “not the new Community Standard of Medical Care for HCV.” [Doc. 82, at 2]. It seems that by making this argument Plaintiff is attempting to scramble the dates contained in his pleadings in hopes to fall within the limitations period.

         Regardless of whether Plaintiff learned of the drug change by way of “rumor” in 2013, or by “fact” in 2015, his claims are still time-barred because, taking Plaintiff's statements his original Complaint [Doc. 1] and Amended Complaint [Doc. 63] as true, he unequivocally requested treatment with new FDA drugs in December 2013. See [Doc. 1, at 20]; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). If Plaintiff requested treatment with new drugs since 2013, and as of the date of his original Complaint [Doc. 1], July 27, 2017, [4] had “not received any treatment after multiple requests, ” Plaintiff would have been alerted to act to assert his rights due to the alleged violation. Hipp, 252 F.3d at 1222, supra.

         Plaintiff's attempts to skirt the apparent statute of limitations issue in this case are defeated by his own original Complaint [Doc. 1], and its express incorporation by reference into the Amended Complaint [Doc. 63]. See [Doc. 63, at 4]. Even if the Court ignored any reference (which it cannot and does not) to the October 2013 date discussed above, Plaintiff's claims are still time-barred because the latest date certain in the Amended Complaint [Doc. 63], in which Plaintiff was “sure” of a change in drug protocol, is “June 29, 2015.” See [Doc. 63, at 4; n.2]; see also [Doc. 106, at 3]. Using June 29, 2015, as the operative date, Plaintiff had until June 30, 2017, to file a complaint. He failed to do so, and Plaintiff's actual filing date of July 27, 2017, is too late.

         If June 29, 2015, was the operative date in this case, its presence may cloud the continuing violation issue. However, the Court simply cannot overlook Plaintiff's own admissions in his original Complaint [Doc. 1] that he requested some variation of new drugs “since December 2013.” [Doc. 1, at 20]. It is true that courts are obligated to hold “a [pro se] complaint, however inartfully pled, to a less stringent standard than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 107 (1976)). This obligation, however, does not, as Plaintiff would hope, permit courts to construe pleadings to omit certain materials that would allow a plaintiff to prevail in his case. Plaintiff sat on his rights at the time of the alleged violation and further failed to exercise those rights within the confines of the Eleventh Circuit's constriction on the continuing violation doctrine. See Hipp, 252 F.3d at 1222, supra.

         Therefore, Plaintiff's first objection fails to overcome the findings and conclusions of the United States Magistrate Judge and the Court ADOPTS the Recommendation [Doc. 104] as to Defendants' Motions to Dismiss [Docs. 28 and 71] and MAKES IT THEORDER OF THE COURT. Accordingly, the Court GRANTS the Motion to Dismiss [Doc. 28] filed by Defendants Greg Dozier, Homer Bryson, Dr. Sharon Lewis, Dr. David Ekwunife ...


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