Alfano v. Skinner

RICHARD ALFANO, #2106078 v. JIM SKINNER, ET AL.

Civil Action No. 4:18-CV-512

United States District Court EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

September 18, 2020

(Judge Mazzant/Judge Nowak)

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On August 17, 2020, the report of the Magistrate Judge (Dkt. #59) was entered containing proposed findings of fact and recommendations that Defendants Sheriff Jim Skinner's ("Skinner") Motion to Dismiss (Dkt. #27); Michael Mixon, M.D., Correctional Healthcare Companies, Inc., and Southwest Correctional Medical Group, Inc.'s ("Medical Defendants") Motion to Dismiss (Dkt. #29); and McKinney Police Officer Natalie Irwin's ("Irwin") Motion to Dismiss (Dkt. #34) be granted, Plaintiff's claims be dismissed with prejudice, and Plaintiff's pending Motions (Dkts. #52; #56) be denied as moot. Having received the report of the Magistrate Judge, having considered Plaintiff's Objections (Dkt. #61) and Defendants' Response (Dkt. #63), and having conducted a de novo review, the Court is of the opinion that the Magistrate Judge's report should be adopted.

RELEVANT BACKGROUND

Plaintiff filed his Second Amended Complaint—the live pleading—on September 5, 2019 (Dkt. #12). Plaintiff's Second Amended Complaint seeks relief under 42 U.S.C. § 1983 against Defendants arising out of his medical care while Plaintiff was incarcerated in Collin County. Relevant to consideration of Plaintiff's Objections, it is undisputed that Plaintiff was arrested and booked into the Collin County Detention Center by Irwin on or about July 14, 2015, and suffered the injury about which he complains within forty-eight (48) hours (Dkt. #12 at p. 4). Plaintiff did not initiate his suit until three years later, filing his original complaint on July 17, 2018, in the Eastern District of Texas (Dkt. #1). On August 17, 2020, the Magistrate Judge recommended Plaintiff's be dismissed as barred by limitations. The report, after noting that the applicable limitations period is two years, surmises:

By Plaintiff's own admission, his fall "due to [the] lack of [a] wheelchair" occurred within forty-eight hours of his arrival in the Collin County facility and resulted in him breaking his vertebrae, suffering a severed artery, experiencing a stroke, and having a torn shoulder cuff . . . . By and through the instant suit, Plaintiff seeks relief for these injuries. At the latest, Plaintiff became "aware that he has suffered an injury" on July 16, 2015. Thus, Plaintiff was required to file suit no later than July 16, 2017. Instead, Plaintiff filed the instant suit on July 17, 2018 . . . —more than a year after the statute of limitations expired. Moreover, Plaintiff makes "no argument that the statute of limitations should be tolled."

(Dkt. #59 at p. 7). Plaintiff's Objections were stamped as filed on September 11, 2020 (Dkt. #61). Plaintiff objects to dismissal, contending for the first time that he is entitled to equitable tolling because it was not until 2018 that he was able to file unobstructed (Dkt. #61 at p. 1). Plaintiff continues on to detail the number of attempts he made to file a class action suit against the Collin County Detention Center and its employees, asserts that if he had been unhindered he would have filed his suit at the latest in October 2016, and purports to list requests he made for lawyer assistance or access to the law library (Dkt. #61 at pp. 2-6). None of the referenced documents are attached to Plaintiff's Objections. In sum, Plaintiff details a period of fourteen months he alleges he was hindered in filing his civil suit (Dkt. #61 at p. 6). Plaintiff declares that he has been incarcerated in the Texas Department of Criminal Justice since January 2017 (Dkt. #61 p. 8). Defendants, in response, argue that Plaintiff's objections are waived because they were never raised in the first instance before the Magistrate Judge, and further that Plaintiff, even if he hadgiven copies of all the documents referenced to the Court, has not met his burden to submit additional evidence to support his opposition to dismissal (Dkt. #63 at pp. 1-2).

OBJECTIONS TO REPORT AND RECOMMENDATION

A party who files timely written objections to a magistrate judge's report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(2)-(3).

Limitations

Plaintiff does not dispute the applicable limitations period for his § 1983 claims; rather, Plaintiff contends that he was diligent in pursuing his rights and "would have met the 2 year deadline easily" but for Collin County Detention Center hindering him in filing (Dkt. #61 at p. 7). Plaintiff also seemingly asserts lack of access to the prison law library, denial of access to legal materials, and/or lack of legal counsel. Notably, Defendants are correct; none of these arguments were raised before the Magistrate Judge. Indeed, the Magistrate Judge specifically detailed that Plaintiff raised no argument regarding and/or grounds to support tolling (Dkt. #59 at p. 7). For this reason alone, Plaintiff's Objections should be denied.

Moreover, a court may equitably toll the applicable limitations period for claims under 42 U.S.C. § 1983. See Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998). "The doctrine of equitable tolling preserves a plaintiff's claims when the strict application of the statute of limitations would be inequitable." Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995). And it "applies only in 'rare and exceptional circumstances.'" Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002). Equitable tolling requires "a showing that '(1) [a litigant] has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Mornes v. Valdez, 414 F. Supp. 3d 888, 891-92 (N.D. Tex. Oct. 25,2019) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)) (alteration in original). Courts apply equitable tolling sparingly; "a litigant may not use the doctrine 'to avoid the consequences of their own negligence.'" Vega v. Town of Flower Mound, Tex., 737 F. App'x 683, 685 (5th Cir. 2018); see also Granger v. Aaron's, Inc., 636 F.3d 708, 712 (5th Cir. 2011) ("Equitable tolling is to be applied 'sparingly.'").

Plaintiff's allegations regarding lack of access to the prison law library, denial of access to legal materials, and/or lack of legal counsel, to the extent alleged in support of tolling, fail to establish exceptional circumstances worthy of equitable tolling. See Boswell v. Claiborne Par. Det. Ctr., 629 F. App'x 580, 582 (5th Cir. 2015) ("Boswell's contentions that he is entitled to equitable tolling of the...