United States District Court, M.D. Alabama, Northern Division
DARON D. HOWARD, #159809, Plaintiff,
DR. MILLARD McWHORTER, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, Jr., Magistrate Judge.
This 42 U.S.C. § 1983 action is pending before the court on a complaint filed by Daron D. Howard, ["Howard"], an indigent inmate, on August 8, 2012. In this complaint, Howard first alleges that he received inadequate medical treatment while incarcerated at the Covington County Jail during the latter part of 2009. With respect to this period of incarceration, Howard asserts that the jail's medical personnel "did not assist [him] with [his] pain and suffering" and Dr. McWhorter never personally conducted a physical examination of him. Complaint - Doc. No. 1 at 3. Howard maintains that in December of 2009, after his release from the Covington County Jail, he "was hospitalized at Southeast Medical in Dothan and then was transferred to UAB... [and] diagnosed with Polymyositis." Id.  Howard also appears to challenge the medical treatment he received during his subsequent incarceration in the Covington County Jail from "March 13, 2012 to May 25, 2012." Id. at 2. Howard seeks monetary damages and declaratory relief for the alleged violations of his constitutional rights.
The defendants filed a special report, supplements to the report and supporting evidentiary materials addressing Howard's claims for relief. In these documents, the defendants adamantly deny they acted with deliberate indifference to Howard's medical needs. In addition, the defendants assert that the claims related to treatment provided during Howard's incarceration in 2009 are barred by the applicable statute of limitation. Defendants' Special Report - Doc. No. 28 at 15. The defendants further argue that the complaint is due to be dismissed because Howard failed to properly exhaust an administrative remedy available to him at the Covington County Jail with respect to the claims presented in this cause of action. Id. at 15-16. The defendants base their exhaustion defense on the plaintiff's failure to file a grievance regarding the claims presently pending before this court as allowed by the jail's grievance procedure. Id.
On October 12, 2012, the court provided Howard an opportunity to file a response to the defendants' report with respect to each of the arguments set forth by the defendants addressing his claims for relief. Doc. No. 29 at 1. In his response to this order, Howard does not dispute his failure to timely file the complaint as to the 2009 deliberate indifference claims or his failure to exhaust the administrative remedy provided by the Covington County Jail with respect to each of the claims presented in the complaint. See Doc. No. 29.
Based on the foregoing, the court deems it appropriate to treat the defendants' report as a motion to dismiss on both statute of limitations and exhaustion grounds. Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) (quoting Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368-69 (9th Cir. 1988) (Although "an exhaustion defense... is not ordinarily the proper subject for a summary judgment... it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment.'").
A. Claims Barred by the Statute of Limitations
In their special report and answer, the defendants raise the affirmative defense that Howard's claims addressing medical treatment provided to him during his confinement in 2009 are barred by the applicable statute of limitations.
All constitutional claims brought under § 1983 are tort actions, subject to the statute of limitations governing personal injury actions in the state where the §1983 action has been brought. Wilson v. Garcia, 471 U.S. 261, 275-76, 105 S.Ct. 1938, 1946-47, 85 L.Ed.2d 254 (1985). [The plaintiff's] claim was brought in Alabama where the governing limitations period is two years. Ala. Code § 6-2-38; Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989) (en banc). Therefore, in order to have his claim heard, [the plaintiff is] required to bring it within two years from the date the limitations period began to run.
McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). The statute of limitations begins to run 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.'" Calhoun v. Alabama Alcoholic Beverage Control Bd., 705 F.2d 422, 425 (11th Cir. 1983) (quoting Reeb v. Econ. Opportunity Atlanta, Inc., 516 F.2d 924, 930 (5th Cir. 1975)). A section 1983 action therefore accrues when the plaintiff knows or has reason to know of the underlying claims. Calhoun, 705 F.2d at 424.
As previously noted, supra at p.1 n.1, the earliest date the complaint could be deemed to have been filed is August 8, 2012. By it express terms, the tolling provision of Ala. Code § 6-2-8(a) provides no basis for relief to Howard from application of the time bar. Howard knew or clearly had reason to know of his claims regarding an alleged lack of treatment during his 2009 incarceration at the time of receiving such treatment as Howard repeatedly concedes knowledge of suffering pain throughout the relevant period of time. Moreover, at the very latest, Howard knew or should have known of all facts relevant to these claims upon the December of 2009 diagnosis that he suffered from Polymyositis. Despite this knowledge, Howard waited until August 8, 2012 to file this cause of action challenging the medical treatment provided to him during his incarceration at the Covington County Jail in 2009, which is beyond two years from the time when these claims accrued. Specifically, in viewing the facts in the light most favorable to Howard, the statute of limitations began to run on these claims in December of 2009. The two-year period of limitation ran uninterrupted until it expired in December of 2011. Therefore, the claims arising from medical treatment provided during Howard's confinement in the latter months of 2009 are barred by the two-year statute of limitations rendering this action frivolous as to these claims. Clark v. Georgia Pardons and Parole Bd., 915 F.2d 636, 640 n.2 (11th Cir. 1990) ("The expiration of the statute of limitations is an affirmative defense the existence of which warrants dismissal as frivolous. See Franklin [ v. State of Oregon ], 563 F.Supp.  at 1330, 1332."). In light of the foregoing, dismissal of the claims relevant to medical treatment rendered in 2009 is appropriate.
B. Failure to Exhaust Administrative Remedy
1. Standard of Review Applicable to ...