Mixon v. Esch

MATTHEW O. MIXON, Plaintiff, v. MD JACQUELINE ESCH, in her individual capacity;and SANDRA VANSANT, in her individual capacity; Defendants.

8:17CV325

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

March 30, 2021

MEMORANDUM AND ORDER

This matter is before the court on Defendants' Motions for Summary Judgment. (Filings 64 & 79.) For the reasons that follow, Defendants' motions are granted.

I. BACKGROUND

Plaintiff Matthew O. Mixon ("Plaintiff") originally filed this action on September 6, 2017, when he was confined in the custody of the Nebraska Department of Correctional Services ("NDCS"). (Filing 1.) Plaintiff has since been released from NDCS custody and has been granted leave to proceed in forma pauperis as a non-prisoner. (Filing 57.)

The operative pleading, Plaintiff's Second Amended Complaint (filing 44), seeks damages for injuries Plaintiff alleges he suffered as a result of being deprived of necessary seizure medication while he was incarcerated in the Douglas County Department of Corrections ("DCDC") in late 2015. In a Memorandum and Order entered January 2, 2020, the court determined that Plaintiff alleged "a plausible claim of deliberate indifference to Plaintiff's medical needs under the Eighth and Fourteenth Amendments against the DCDC medical employees in their individual capacities." (Filing 45 at CM/ECF pp. 4-5.) However, because Plaintiff failed to make any attempt to identify the specific individuals involved in his allegedly deficient medical care, the court required Plaintiff to identify the individual DCDC medical employees by name to allow the matter to proceed to service of process. (Id. at CM/ECF p. 5.)

Plaintiff identified Defendants Jacqueline Esch, MD ("Dr. Esch"), and Sandra Vansant ("Vansant") (collectively "Defendants") by name on March 11, 2020. (Filing 50.) Vansant and Dr. Esch were served with summons of process on June 18, 2020, and September 12, 2020, respectively. (Filings 60 & 74.) Defendants now seek dismissal of this action because Plaintiff's claims are barred by the applicable statute of limitations, Plaintiff has failed to plead any applicable tolling excuses, and the relation back doctrine does not apply.

II. STANDARD OF REVIEW

Defendants acknowledge that a statute of limitations issue is normally pled as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See Wycoff v. Menke, 773 F.2d 983, 984-85 (8th Cir. 1985) (quoting R.W. Murray Co. v. Shatterproof Glass Corp., 697 F.2d 818, 821 (8th Cir. 1983)) ("[W]hen it 'appears from the face of the complaint itself that the limitation period has run,' a limitations defense may properly be asserted through a 12(b)(6) motion to dismiss.") However, because they have submitted affidavits in support of their respective motions, Defendants' motions are properly considered as summary judgment motions. If, on a motion under Rule 12(b)(6), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56, and all parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. Fed. R. Civ. P. 12(d).

When a motion to dismiss is converted into a motion for summary judgment, a party against whom this procedure is used is normally entitled to notice that conversion is occurring. Barron ex rel. D.B. v. S. Dakota Bd. of Regents, 655 F.3d787, 791 (8th Cir. 2011). But where the movant designates its motion to dismiss alternatively as a motion for summary judgment, and the nonmovant submits materials outside the pleadings, a district court is not required to give formal notice that it will treat a motion as one for summary judgment.¹ Hearing v. Minnesota Life Ins. Co., 793 F.3d 888, 893 (8th Cir. 2015). That is the situation here: Defendants moved for summary judgment, submitting evidence in support of their motions, and Plaintiff has responded and presented evidence in opposition to the motions. (See Filings 77, 82, & 83.) Under such circumstances, treating each motion as one for summary judgment is appropriate. See George v. City of St. Louis, 26 F.3d 55, 57 (8th Cir. 1994).

Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the initial responsibility of informing the court of the basis for the motion and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.

On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge.Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. "In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying 'facts that might affect the outcome of the suit.'" Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant." Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011) (cleaned up). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.

III. SUMMARY JUDGMENT PROCEDURE

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

This court's local rules further specify that "[t]he moving party must include in the brief in support of the summary judgment motion a separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of law." NECivR 56.1(a)(1). "The statement of facts should consist of short numberedparagraphs, each containing pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials that support the material facts stated in the paragraph." NECivR 56.1(a)(2) (emphasis in original). "The statement must not contain legal conclusions." Id.

The opposing party's brief must include "a concise response to the moving party's statement of material facts." NECivR 56.1(b)(1). "Each material fact in the response must be set forth in a separate numbered paragraph, must include pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon which the opposing party relies, and, if applicable, must state the number of the paragraph in the movant's statement of material facts that is disputed." Id.

A party's failure to comply with these requirements can have serious consequences: The moving party's "[f]ailure to submit a statement of facts" or "[f]ailure to provide citations to the exact locations in the record supporting the factual allegations may be grounds to deny the motion for summary judgment." NECivR 56.1(1)(a) (emphasis in original). On the other hand,"[p]roperly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response." NECivR 56.1(1)(b)(1) (emphasis in original).

IV. EVIDENCE PRESENTED

In this case, Defendants' Briefs in support of their respective motions for summary judgment each contain a separate statement of material facts in accordance with the court's local rules with references to the record and properly authenticated evidence. (Filing 66 at CM/ECF pp. 2-15; Filing 81 at CM/ECF pp. 2-14.) The documents referenced include the affidavit of Vansant (filing 65-1), the affidavit of Dr. Esch (filing 80-1), Plaintiff's various pleadings (filings 1, 6, 7, 12, 13, 18, 36, 44, & 50), and several court orders (filings 10, 35, 42, 45, & 52).

In order to discuss Plaintiff's responses to Defendants' summary judgment motions, the court first must lay out some background information. Vansant filed her Motion for Summary Judgment, Index of Evidence, and Brief in support thereof on August 7, 2020. (Filings 64-66.) On August 19, 2020, Plaintiff notified the court that his address had changed due to his recent incarceration in the Cass County Jail. (Filing 67.) On that same date, Vansant filed a Certificate of Service certifying that on August 19, 2020, she mailed her Motion for Summary Judgment, Index of Evidence, and Brief in support thereof to Plaintiff at his updated address. (Filing 68.) On September 3, 2020, the court entered a Memorandum and Order acknowledging that Vansant had mailed her summary judgment motion and supporting materials to Plaintiff at his updated address and gave Plaintiff "until September 14, 2020, to file a brief in opposition to Vansant's summary judgment motion. See...