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Riley v. Warren

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

March 8, 2019

DENNIS LEWIS RILEY, Plaintiff,
v.
DARYL WARREN, et al., Defendants.

          REPORT AND RECOMMENDATION

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.

         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.[1] 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.

         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 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 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 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).

         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.[2]Shaw v. ...


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