United States District Court, M.D. Georgia, Columbus Division
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
Statute of Limitations
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
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
Fed.Appx. 862, 865 (11th Cir. 2013) (“The forum
state's statute of limitations for personal injury
actions applies to § 1983 claims, which in Georgia is
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).
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).
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 Fed.Appx. 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 Fed.Appx. 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).
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. ...