Johnson v. Englander

1

Jacob William Johnson v. Celia Englander et al.

CIVIL No. 20-cv-398-SE

Opinion No. 2022 DNH 113

United States District Court, D. New Hampshire

September 15, 2022

ORDER

SAMANTHA D. ELLIOTT, UNITED STATES DISTRICT JUDGE

In this action, the plaintiff Jacob William Johnson filed a complaint^[1] pursuant to 42 U.S.C. § 1983 asserting claims against a number of current and former employees of the New Hampshire Department of Corrections (“DOC”), alleging that each of the defendants violated his federal constitutional rights, and rights under state law, during his incarceration at the New Hampshire State Prison for Men (“NHSP”).^[2] Two defendants, Wendy Giroux^[3] and John Lombard, both of whom Johnson describes as registered nurses, have filed motions to dismiss certain claims Johnson has asserted against them under Federal Rule of Civil Procedure 12(b)(6). Doc. no. 33 (Giroux's motion); Doc. no. 34 (Lombard's motion). For the reasons that follow, the court denies both motions.

Background

Johnson has a urological condition known as a “false passage” in his penis. Doc. no. 1 at 14 (capitalization omitted). As a result of that condition, “[t]he primary passage in [his] urethra is prone to frequent blockage which requires that [he] use a catheter to empty [his] bladder.” Id. During the times relevant to the claims addressed here, Johnson was using a Foley catheter pursuant to the prescription of a urologist, which had to be changed at least every thirty days by the medical staff at the NHSP. See Id. Improper administration of his Foley catheter “can lead to acute urinary retention (overfull bladder) and urinary tract infection.” Id. Johnson asserts that the incidents underlying the claims at issue here “are examples of occurrences where denial of medical care caused pain from acute urinary retention and urinary tract infection.” Id.

Johnson filed, as an addendum to his complaint, a February 17, 2017 DOC “Off-Site/Consult Order.” Doc. no. 41 at 2 (“OS/CO”).^[4] That document indicates that on February 17, 2017, Dr. Celia Englander, a physician treating Johnson at the NHSP, directed that an appointment be scheduled for Johnson at Manchester Urology Association for a urodynamic study “as recommended by Urology as evaluation of severe urinary frequency.”^[5] Id. According to the OS/CO, Dr. Englander requested that the appointment with Manchester Urology be scheduled for March 1, 2017. See Id. The record before the court does not reveal whether that appointment occurred on that date.

Johnson asserts that on March 2, 2017, he was in urinary retention and therefore unable to empty his bladder. See doc. no. 1 at 26. Johnson states that he saw Giroux about his urinary retention that day, but she failed to identify his urinary retention. See Id. As a result, that condition progressed to a painful acute urinary retention. See id.

Johnson alleges that on other unspecified dates, his Foley catheter clogged and needed to be changed.^[6] See Id. On those occasions, when Johnson asked Giroux to change his catheter and recatheterize him, “[s]he rudely told [him] she didn't feel like it and refused to help [him].” Id. Johnson further asserts that Giroux “is responsible for many situations that ultimately neglected [him] due to incompetence.” Id.

According to his complaint, on March 3, 2017, Johnson sought emergency help from Lombard because he was “experiencing acute urinary retention.” Id. at 17. Lombard initially refused to evaluate Johnson. See Id. Johnson states that Lombard eventually saw him, but that Lombard “wasn't sincere about helping [him] get catheterized” or helping him get to a hospital or other outside medical facility for emergency care. Id. Johnson further alleges that Lombard did not use a bladder scanner to determine the source of Johnson's urological symptoms. See id.

II. Claims Asserted Against the Defendants

Magistrate Judge Andrea K. Johnstone conducted a preliminary review of the original, pre-supplemented version of the complaint in this matter (doc. no. 1), see 28 U.S.C. § 1915(a) and LR 4.3(d)(1), and identified the following three claims, as relevant to the pending motions, as having been asserted against Giroux and Lombard in their individual capacities^[7]:

1. Defendants violated Mr. Johnson's Eighth Amendment right to receive adequate medical care for his serious medical needs related to his false passage and urinary tract problems and are liable to him for negligence or professional malpractice under state law, in that:

. . .

(c) DOC/NHSP Nurse Wendy Gi[r]oux:

i. on March 2, 2017, failed to identify Mr. Johnson's urinary retention, resulting in a progression of his condition to acute urinary retention; and ii. refused, on more than one occasion, to catheterize Mr. Johnson when his Foley catheter was clogged, stating that “she didn't feel like it,” Compl. at 26.

(d) DOC/NHSP Nurse John Lombard:

i. on March 3, 2017, delayed evaluating Mr. Johnson when Mr. Johnson was experiencing a medical emergency due to acute urinary retention and, when he eventually saw Mr. Johnson, failed to catheterize him, failed to have Mr. Johnson seen at a hospital, and failed to use a bladder scanner to evaluate Mr. Johnson's condition[.]

Doc. no. 7 at 5. Judge Johnstone directed service of Claims 1(c)(i)-(ii) upon Giroux and Claim 1(d)(1) upon Lombard. Doc. no. 8. Giroux and Lombard each filed a motion to dismiss pertaining to the above-listed claims.

Discussion

I. Rule 12(b)(6) Standard

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint must provide ‘a short and plain statement of the claim showing that the pleader is entitled to relief,'” with “enough factual detail to make the asserted claim ‘plausible on its face.'” Legal Sea Foods, LLC v. Strathmore Ins. Co., 36 F.4th 29, 33 (1st Cir. 2022) (quoting, inter alia, Fed.R.Civ.P. 8(a)(2) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court's assessment of plausibility “is ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'” Cebollero-Bertran v. P.R. Aqueduct & Sewer Auth., 4 F.4th 63, 70 (1st Cir. 2021) (quoting Iqbal, 556 U.S. at 679). To make the plausibility determination, the court “accept[s] as true all well-pleaded facts alleged in the complaint and draw[s] all reasonable inferences therefrom in the [plaintiff]'s favor,” but “credit[s] neither conclusory legal allegations nor factual allegations that are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture.” Legal Sea Foods, 36 F.4th at 33 (quotations omitted). Because Johnson is representing himself in this matter, the court construes his pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

“Affirmative defenses may be raised on a motion to dismiss under Rule 12(b)(6) so long as the facts establishing the defense are clear from the face of the complaint as supplemented by matters fairly incorporated within it and matters susceptible to judicial notice.” Monsarrat v. Newman, 28 F.4th 314, 318 (1^st Cir. 2022) (quotation omitted). “Dismissal based on an affirmative defense is appropriate only where there is no doubt that the plaintiff's claim is barred by the raised defense.” Id. (quotation omitted).

II. Statute of Limitations-Claims 1(c)(i) and 1(d)(i)

A. Length, Accrual, and Tolling of Limitations Period

In general, claims arising under § 1983 borrow the statute of limitations applicable to personal injury claims in the state in which the events underlying the claims occurred. See Fincher v. Town of Brookline, 26 F.4th 479, 485-86 (1st Cir. 2022) . In New Hampshire, such claims are subject to a three-year limitations period. See McNamara v. City of Nashua, 629 F.3d 92, 95 (1st Cir. 2011) (citing N.H. Rev. Stat. Ann. § 508:4, I). While state law controls the length of the limitation period, “federal law controls when the cause of action accrues.” Fincher, 26 F.4th at 486. Ordinarily, a § 1983 claim accrues “when a plaintiff knows or has reason to know of his injury.” Id. (quotation omitted). Additionally, when the court applies the limitations period dictated by state law to a § 1983 claim, the court also borrows the state's rules for tolling the limitations period. See Ouellette v. Beaupre, 977 F.3d 127, 135 (1st Cir. 2020).

B. Analysis

1. Accrual Date and Filing Deadline

In this case, Johnson had reason to know of the injuries he alleges resulted from the incidents underlying Claims 1(c)(i) and 1(d)(i) on the dates they occurred, March 2 and 3, 2017.

Therefore, those claims accrued on those dates. Absent equitable tolling, Johnson's deadline to file Claim 1(c)(i) against Giroux was March 2, 2020, and his deadline to file Claim 1(d)(i) against Lombard was March 3, 2020.

The defendants each contend that Johnson's complaint should be deemed filed on the date that it was received by the court, March 31, 2020, which is almost thirty days after the limitations period expired as to Claims 1(c)(i) and 1(d)(i). However, in a § 1983 action, the “mailbox rule” provides that a pro se prisoner's court filing is deemed filed on the date he delivered it to prison authorities to be mailed. See Casanova v. Dubois, 304 F.3d 75, 79 (1st Cir. 2002). Accordingly, for the purposes of ruling on the instant motions, the court deems Johnson's original complaint to have been filed on the date it was signed, March 19, 2020,^[8] which still exceeds the three-year limitations period ordinarily applicable to a § 1983 claim by seventeen days. If, however, New Hampshire law could equitably toll his claims at issue here for at least seventeen days, Johnson's claims would not be time-barred.

2. Equitable Tolling

In New Hampshire, the...