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Hutchinson v. Cunningham

United States District Court, M.D. Alabama, Northern Division

January 23, 2018

JOSHUA HUTCHINSON, Plaintiff,
v.
DERRICK CUNNINGHAM, et al., Defendants.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Joshua Hutchinson claims that he was subjected to dangerous conditions of confinement while incarcerated at the Montgomery County Detention Center, causing him significant and ongoing psychological damage. Pending before the court are five motions: (1) a Rule 25 and 12(b) motion to dismiss the claims against Defendant D.T. Marshall filed by Defendants D.T. Marshall, Kevin J. Murphy, Barbara Palmer, Wanda J. Robinson, and Melvin Turner (Doc. 72); (2) a Rule 12(b)(6) motion to dismiss filed by Defendants Daffany Abbington, Tiffany Clark, Teresa Varden, Dionne Baker, and Sharon Smith (Doc. 73); (3) a Rule 12(b)(6) motion to dismiss filed by Defendants QCHC, Inc., Johnny Bates, Donald Kern, and Jerry Gurley (Doc. 75); (4) a Rule 12(b)(6) motion to dismiss filed by Defendants Derrick Cunningham, Wanda J. Robinson, Barbara Palmer, Kevin J. Murphy, and Melvin Turner (Doc. 77); and (5) a Rule 12(b)(6) motion to dismiss filed by Defendants Deborah Muse, Kim Patterson, and Michelle Beasley (Doc. 100).

         The motions are fully briefed and ripe for resolution by the court. On October 3, 2017, this matter was referred to the undersigned United States Magistrate Judge for pretrial proceedings and determinations or recommendations as may be appropriate. Doc. 96. Having reviewed the parties' filings and the applicable authority, and for the reasons that follow, the undersigned recommends (1) all claims against Defendant “Dr. White” be DISMISSED WITHOUT PREJUDICE for failure to perfect service and for failure to prosecute; (2) the Rule 25 motion to dismiss Defendant D.T. Marshall (Doc. 72) be GRANTED and all claims against that defendant be DISMISSED WITHOUT PREJUDICE; (3) the motions to dismiss Defendants Daffany Abbington, Dionne Baker, Tiffany Clark, Sharon Smith, Teresa Varden, Deborah Muse, Kim Patterson, and Michelle Beasley (Docs. 73 & 100) be DENIED; (4) the motion to dismiss Defendants QCHC, Inc., Johnny Bates, Donald Kern, and Jerry Gurley (Doc. 75) be GRANTED IN PART and DENIED IN PART; and (5) the motion to dismiss Defendants Derrick Cunningham, Wanda J. Robinson, Barbara Palmer, Kevin J. Murphy, and Melvin Turner (Doc. 77) be GRANTED.

         I. STANDARD OF REVIEW

         All of the pending motions to dismiss argue that Hutchinson's claims should be dismissed for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Some defendants also argue that Hutchinson's claims against Marshall should be dismissed because Hutchinson failed to substitute a new defendant in accordance with Federal Rule of Civil Procedure 25(a)(1) after a suggestion of Marshall's death was filed.

         A Rule 12(b)(6) motion may challenge the sufficiency of a plaintiff's pleading as well as its timeliness. See Fed. R. Civ. P. 12(b)(6); Lischke v. Stewart, 2016 WL 2962216, at *1 (S.D. Ala. May 20, 2016) (citing Foster v. Savannah Comm., 140 Fed.Appx. 905, 907 (11th Cir. 2005)). When considering a Rule 12(b)(6) motion, the court must accept the plaintiff's allegations as true and construe them liberally in the plaintiff's favor. Stovall v. Hancock Bank of Ala., 2013 WL 3357851, at *5 (M.D. Ala. July 3, 2013). A district court must also favor the plaintiff with all reasonable inferences from the allegations in the complaint. Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571 (11th Cir. 1990). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A complaint states a facially plausible claim for relief “when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. A complaint does not state a facially plausible claim for relief if it shows only “a sheer possibility that the defendant has acted unlawfully.” Id.

         While a complaint need not contain detailed factual allegations to survive a Rule 12(b)(6) motion, “[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. (internal quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Absent the necessary factual allegations, “unadorned, the-defendant-unlawfully-harmed-me accusation[s]” will not suffice. Iqbal, 556 U.S. at 678.

         Courts are not “bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Further, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. It is appropriate for a court to grant a motion to dismiss on Rule 12(b)(6) grounds “when it is demonstrated beyond a doubt the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Reeves v. DSI Sec. Servs., 331 Fed.Appx. 659, 661 (11th Cir. 2009).

         II. FACTS AND PROCEDURAL HISTORY

         Plaintiff Joshua Hutchinson filed his complaint on March 29, 2017, claiming that he was subjected to dangerous conditions of confinement while incarcerated at the Montgomery County Detention Center (hereinafter, the “County Jail”). Doc. 1. Hutchinson's claims arise specifically “from his pretrial incarceration, where he was subjected to extended and unjustified solitary confinement under conditions amounting to virtual torture, causing him significant and ongoing psychological damage.” Doc. 70 at ¶ 1. He also claims that he was “discriminated against based on his disability and denied a reasonable accommodation (modification) for his disability (sleep apnea).” Doc. 70 at ¶ 1.

         Following the filing of multiple motions to dismiss, Hutchinson sought leave to amend his complaint to “clarify the legal and factual bases for plaintiff's claims in light of the issues raised by defendants' motions to dismiss.” Doc. 67 at ¶ 2. The court granted Hutchinson's motion, and he filed his amended complaint on July 25, 2017. Docs. 69 & 70.

         The amended complaint is the operative pleading before the court and asserts multiple claims against nineteen defendants based on the conditions of Hutchinson's confinement at the County Jail. Doc. 70. The defendants are (1) Derrick Cunningham, Sheriff of Montgomery County, Alabama from January 16, 2015 to the present, and prior to that Chief Deputy of the Montgomery County Sheriff's Department (Doc. 70 at ¶ 4); (2) D.T. Marshall, Montgomery County Sheriff during the relevant time period until January 16, 2015, when he was replaced by Cunningham (Doc. 70 at ¶ 5); (3) Wanda J. Robinson and Barbara Palmer, both “high-ranking” officers in the Montgomery County Sheriff's Department (Doc. 70 at ¶¶ 6-7); (4) Kevin J. Murphy, Chief Deputy of the Montgomery County Sheriff's Department during the relevant time period after Cunningham became Sheriff (Doc. 70 at ¶ 8); (5) Melvin Turner, Assistant Chief Deputy of the Montgomery County Sheriff's Department during the relevant time period (Doc. 70 at ¶ 9); (6) QCHC, Inc. (“QCHC”), medical provider for the County Jail during the relevant time period (Doc. 70 at ¶ 10); (7) Drs. Johnny Bates, Donald Kern, Jerry Gurley, and “ __White, ” physicians employed by QCHC who treated Hutchinson during the relevant time period (Doc. 70 at ¶ 11); and (8) Daffany Abbington, Tiffany Clark, Deborah Muse, Kim Patterson, Michelle Beasley, Teresa Varden, Dionne Baker, and Sharon Smith, nurses employed by QCHC who treated Hutchinson during the relevant time period (collectively, the “Nurse Defendants”) (Doc. 70 at ¶ 12). Dr. Bates also was the owner, founder, and CEO of QCHC, and Dr. Kern was its corporate medical director; both were final policymakers for QCHC during the relevant time period. Doc. 70 at ¶ 11.

         Accepting as true all relevant facts set forth in Hutchinson's amended complaint, the court finds the following facts:

         During the relevant time period, Hutchison was a pretrial detainee awaiting trial on a federal charge of felon in possession of a firearm. Doc. 70 at ¶ 3. Unable to make bond, Hutchinson was first incarcerated at the County Jail. Doc. 70 at ¶ 13. This incarceration began on September 11, 2014 and ended on April 28, 2015, when Hutchinson was transferred to the Montgomery City Jail “in order to extricate him from the intolerable conditions to which he was subjected” at the County Jail. Doc. 70 at ¶¶ 14-15.

         Hutchinson suffers from sleep apnea, which affects the major life function of sleeping, and this condition requires him to use a continuous positive airway pressure (“CPAP”) machine while he sleeps. Doc. 70 at ¶¶ 16 & 25. His wife brought his CPAP machine to the County Jail for his sleep apnea. Doc. 70 at ¶¶ 17 & 26.

         Jail command staff, including Marshall, Cunningham, Palmer, Murphy, and Turner, were concerned about the potential for Hutchinson or another inmate to use the CPAP machine as a weapon. Doc. 70 at ¶ 18. To avoid that issue, and to accommodate Hutchinson's need to sleep with the CPAP machine, jail command staff, including Marshall, Cunningham, Palmer, Murphy, and Turner, decided that Hutchinson should be segregated from the general inmate population. Doc. 70 at ¶¶ 18 & 27. To carry out this decision, these defendants moved Hutchinson to a suicide-watch cell on September 12, 2014, which effectively placed him in solitary confinement. Doc. 70 at ¶¶ 18-19 & 27.

         Hutchinson's cell was approximately six feet wide, did not have windows, and the lights were kept on 24 hours a day. Doc. 70 at ¶¶ 20 & 22. Although the cell had a sink and toilet, Hutchinson could shower only at the discretion of the jailers and sometimes went as long as five days between showers. Doc. 70 at ¶ 21. While segregated, Hutchinson had no access to jail programs and services, including outdoor recreation, television, and the library. Doc. 70 at ¶ 23. Hutchinson was placed in a suicide-watch cell solely for reasons related to his CPAP machine, not any behavioral or disciplinary reasons. Doc. 70 at ¶ 24. At the time Hutchinson was moved to this cell, jail command staff, including Marshall, Cunningham, Palmer, Robinson, Murphy, and Turner, were aware that (1) the lights in the cell were never turned off, (2) Hutchison would not be allowed access to outdoor recreation or any other jail programs while confined in this cell, (3) extended periods of time in solitary confinement presented a substantial risk of serious harm to confined inmates, and (4) the risk of harm presented by solitary confinement would be exacerbated by other factors, including lack of exercise, lack of other stimulation, and constant lighting. Doc. 70 at ¶¶ 28-31.

         The County Jail has policies and procedures related to the use of solitary confinement as a disciplinary measure. Doc. 70 at ¶ 32. These policies and procedures allow an inmate to have a hearing prior to being placed in solitary confinement as a punishment. Doc. 70 at ¶ 33. Hutchinson was not given a hearing, however, and he was never given an opportunity to avoid being placed in a suicide-watch cell. Doc. 70 at ¶¶ 34-35. The decision to place Hutchinson in a suicide-watch cell was for the convenience of the jail staff. Doc. 70 at ¶ 36.

         Before placing Hutchinson in a suicide-watch cell, Marshall, Robinson, Cunningham, Palmer, Murphy, and Turner considered other options for accommodating his CPAP machine that would not require placing him in a suicide-watch cell, such as allowing him to remain in the general inmate population during the day and then moving him to a suicide-watch or other medical cell at night to sleep. Doc. 70 at ¶¶ 37-38. However, “the command staff defendants”[1] placed Hutchinson in a solitary suicide-watch cell for 24 hours a day. Doc. 70 at ¶ 39.

         Prior to Hutchinson's incarceration at the County Jail, he was “a well-adjusted, intelligent, and friendly person.” Doc. 70 at ¶ 43. By October 2014, however, the effects of solitary confinement had damaged his mental health to such an extent that he was “unable to understand their cause and communicate his needs.” Doc. 70 at ¶ 44. Hutchinson currently suffers from “selective muteness” as a result of his solitary confinement. Doc. 70 at ¶ 45. He “transformed from a person with a normal presentation to a withdrawn, non-communicative, angry, and paranoid individual who would refuse to eat, refuse medical care, and engage in other antisocial behaviors.” Doc. 70 at ¶ 49. Although he is capable of speaking and understanding others, “he will speak only to his wife and is withdrawn almost to the point of being a hermit.” Doc. 70 at ¶ 45.

         Hutchinson's deterioration was observed by “QCHC personnel, ” including the Physician and Nurse Defendants. Doc. 70 at ¶ 48. Each of the Nurse Defendants was employed in the County Jail on a regular schedule during the period of Hutchison's incarceration and had contact with him “multiple times a week, if not multiple times a day.” Doc. 70 at ¶ 50. Hutchinson had daily interactions with “QCHC nursing personnel, ” including the Nurse Defendants, because he required daily distilled water for his CPAP machine, was prescribed daily medications, was having his weight monitored, and was under close observation due to his deterioration. Doc. 70 at ¶ 51. Hutchinson's cell was also next to the nurse's station in the jail infirmary, and he was seen by the Nurse Defendants on regular daily rounds. Doc. 70 at ¶ 52. The Nurse Defendants discussed his medical condition among themselves, with correctional officers, and with the County Jail's physicians on a regular basis. Doc. 70 at ¶ 53. The Nurse Defendants were aware of Hutchinson's deterioration “during and after October 2014.” Doc. 70 at ¶ 54.

         Drs. Kern, Bates, and Gurley (collectively, the “Physician Defendants”) also saw Hutchinson, reviewed his medical records, and conferred with nurses about his condition on multiple occasions “during and after October 2014.” Doc. 70 at ¶ 55. Therefore, they were also aware of his deterioration by October 2014. Doc. 70 at ¶ 55.

         Hutchinson further alleges that, based on an unspecified entry in his jail medical records from February 14, 2015, the Nurse and Physician Defendants were aware-by that date “at the latest”-of his severe deterioration and that it was “caused by the inhumane conditions of his confinement.” Doc. 70 at ¶¶ 56-57. After February 14, 2015, the Nurse and Physician Defendants each reviewed Hutchinson's medical records, including the February 14th entry, had multiple contacts with him, were aware of his deteriorating mental state, and were aware that it was connected with the conditions of his confinement, but they “failed and refused to take steps to address” those conditions. Doc. 70 at ¶¶ 58-59. More specifically, the Physician Defendants knew that Hutchinson was in solitary confinement with the lights turned on at all times and limited access to jail activities and other inmates, knew that housing inmates in such conditions would likely cause mental and emotional harm, observed and received reports regarding the harm to Hutchinson, but still “failed and refused to take steps to address” the conditions of his confinement. Doc. 70 at ¶ 60.

         By February 14, 2015, at the latest, the “command staff defendants” were informed by QCHC personnel of Hutchinson's deterioration and that it was caused by the conditions of his confinement. Doc. 70 at ¶ 62. Nevertheless, they “failed and refused to take steps to address” those conditions. Doc. 70 at ¶ 62.

         Hutchinson contends that all of the “individual defendants, with deliberate indifference and knowing the conditions to which [he] was subjected and of his deterioration, took no action to address the inhumane conditions of confinement to which [he] was subjected at any time prior to [his] being transferred out of the jail.” Doc. 70 at ¶ 63. Hutchinson was not permitted to be in the general inmate population during the day or otherwise permitted contact with other inmates. Doc. 70 at ¶ 64. He was not moved to a different cell with normal lights, the lights in his cell were not modified so that they could be turned off, and no efforts were made to block the lights in his cell at night or any other time. Doc. 70 at ¶¶ 65-67.

         Hutchinson claims that each defendant had a duty to protect him but they did not perform that duty, resulting in his injury. Doc. 70 at ¶ 68. Hutchison further alleges that the defendants intentionally and with deliberate indifference violated his constitutional rights, causing him to suffer physical and emotional injuries and damages. Doc. 70 at ¶¶ 68-71.

         Hutchinson asserts five causes of action against the defendants. Count I is a claim against each individual defendant and QCHC pursuant to 42 U.S.C. § 1983 for deliberate indifference to his serious medical needs in violation of the Fourteenth Amendment to the United States Constitution. Doc. 70 at ¶¶ 72-79. Count II asserts a claim against the “sheriff defendants”[2]-presumably, Cunningham, Marshall, Robinson, Palmer, Murphy, and Turner-in their individual capacities for violation of Hutchinson's procedural due process rights under the Fourteenth Amendment to the United States Constitution. Doc. 70 at ¶¶ 80-84. Count III asserts another claim against the “sheriff defendants”-again, presumably, Cunningham, Marshall, Robinson, Palmer, Murphy, and Turner-in their individual capacities for violation of his substantive due process rights under the Fourteenth Amendment to the United States Constitution. Doc. 70 at ¶¶ 85-89. Count IV asserts a claim against Cunningham in his official capacity for a violation of Title II of the Americans with Disabilities Act (“ADA”) for failure to accommodate and for discriminating against Hutchinson because of his disability. Doc. 70 at ¶¶ 90-100. Count V asserts another claim against Cunningham in his official capacity for a violation of Section 504 of the Rehabilitation Act for discriminating against Hutchinson based on his disability. Doc. 70 at ¶¶ 101-113. Hutchinson seeks compensatory and punitive damages, injunctive and declaratory relief, and any other relief to which he may be entitled. Doc. 70.

         III. DISCUSSION

         A. Dismissal of Defendant “Dr. White”

         A review of the docket shows that great effort has been undertaken in this case simply to ascertain the names of the proper defendants. Indeed, as of the date of this recommendation, only one defendant remains partially identified and unserved: “Dr.__White.” Doc. 70 at ¶ 11.

         On June 15, 2017, the court ordered Hutchinson to show cause no later than June 23 why his claims against Dr. White should not be dismissed for failure to prosecute. Doc. 57. On June 22nd, Hutchinson responded to the court's order, explaining that Dr. White had not been properly served and may not have been properly identified in the complaint and that he was currently working to identify the individual defendant known as Dr. White. Doc. 60. In light of this explanation, the court permitted Hutchinson until August 4, 2017 to identify and to serve Dr. White. Doc. 64.

         On July 25, 2017, Hutchinson amended his complaint, clarifying his claims and adding new defendants. Doc. 70. As a result, the court extended Hutchinson's deadline to serve any unserved defendants, including Dr. White, to September 4, 2017. Doc. 69.

         September 4 passed with no evidence presented to the court to indicate that Dr. White had been properly identified or served. As a result, the court ordered Hutchinson to show cause no later than September 12 why his claims against Dr. White should not be dismissed for failure to perfect service and for failure to prosecute. Doc. 87. Hutchinson never responded to that order, and to date there is no evidence or proof on the record demonstrating that the individual defendant identified as Dr. White was ever properly identified[3] and served with the complaint or the amended complaint within Rule 4(m)'s 90-day deadline or within the extended deadlines granted by the court. Accordingly, for these reasons, the undersigned RECOMMENDS that Hutchinson's claims against “Dr. White” be DISMISSED WITHOUT PREJUDICE for failure to perfect service and for failure to provide proof of service pursuant to Rules 4(1) and (m) of the Federal Rules of Civil Procedure and for failure to prosecute his claims against this defendant. See, e.g., Mesa v. Kiehl, 2017 WL 4544897, at *2 (N.D.Ga. Sept. 14, 2017) (recommending dismissal without prejudice of claims against defendant for failure to serve, to provide proof of service, and to prosecute); Stewart v. Bureaus Inv. Group # 1, LLC, 2013 WL 5424000, at *2 (M.D. Ala. Sept. 26, 2013) (dismissing sixteen defendants without prejudice for failure to serve in accordance with Rule 4(m)).

         B. Motion to Dismiss Defendant D.T. Marshall

         Marshall, Robinson, Palmer, Murphy, and Turner have moved to dismiss Hutchinson's claims against Marshall pursuant to Rules 25(a)(1) and 12(b) of the Federal Rules of Civil Procedure. Doc. 72. Because the motion is due to be granted under Rule 25(a)(1), as discussed below, the undersigned will not address the merits of the motion under Rule 12(b).

         Marshall was Sheriff during Hutchinson's incarceration at the County Jail until January 16, 2015, when he was replaced by Cunningham. Doc. 70 at ¶ 5. On April 24, 2017, Marshall, Cunningham, Robinson, Palmer, Murphy, and Turner filed a suggestion of Marshall's death. Doc. 25. As a result, the court ordered the parties to indicate by May 2 whether they intended to file a substitution motion pursuant to Federal Rule of Civil Procedure 25 and, if they did, to file any such motion by July 24, 2017.[4] Doc. 45. The court further warned that if a substitution motion was not filed by the July 24 deadline, the court would recommend that Hutchinson's claims against Marshall be dismissed for failure to comply with Rule 25. Doc. 45.

         On April 28, 2017, Hutchinson filed a notice that he intended to file a substitution motion pursuant to Rule 25 with respect to Marshall. Doc. 49. However, he did not file a substitution motion by the July 24 deadline or any time thereafter.

         Instead, on September 1, 2017-almost six weeks after the July 24 deadline had passed-Hutchinson filed a motion to extend the time to perfect service on Marshall's estate. Doc. 83. Hutchinson argued that, as of the filing of this motion, a probate estate had not been opened for Marshall (even though he had been deceased for more than a year), [5] that it was “expected” that either his widow would probate his will or an estate would be opened through other means, and that it is “expected” that service would be accomplished on a substitute defendant in the “near future.” Doc. 83. Hutchinson requested an additional 60 days to serve Marshall's estate but did not provide the court with a clear plan on when or how an estate would be opened for Marshall, when a motion to substitute would be filed, and when a substitute defendant would be served.

         On September 5, 2017, the undersigned denied as moot Hutchinson's motion for extension of time to serve Marshall's estate, explaining that Hutchinson should have filed a substitution motion within the time frame set by Rule 25, irrespective of whether an estate had been opened. Doc. 87. The deadline for Hutchinson to file a motion to substitute was July 24, 2017, and since he did not file a substitution motion or a request for an extension of time to file a substitution motion by that deadline, his claims against Marshall should be dismissed. Doc. 87.

         Federal Rule of Civil Procedure 25 provides that, if a party dies and the claims are not extinguished, a motion to substitute may be made by any party or the decedent's representative. Fed.R.Civ.P. 25(a)(1). However, if a substitution motion is not made within 90 days after service of a statement noting death, the action by or against the decedent “must be dismissed.” Id. July 24, 2017 was 90 days after the suggestion of Marshall's death was filed. Therefore, Hutchinson was required to file a substitution motion by that date to preserve his claims against Marshall, or he must demonstrate excusable neglect for failing to do so.

         Hutchinson has done neither here. At no time between the date the suggestion of Marshall's death was filed and served-April 24, 2017-and the date of this recommendation has Hutchinson moved to substitute any defendant for Marshall, even though he has been deceased for almost two years. See Docs. 25 & 83. Further, while Hutchinson may have requested an extension of time to serve Marshall's estate, he filed this motion almost six weeks after his July 24 deadline had passed, and he failed to articulate then and has failed to articulate now any excusable neglect for why he could not have sought an extension of time to file his substitution motion before the deadline expired. For these reasons, Hutchinson's claims against Marshall are due to be dismissed pursuant to Rule 25(a)(1).

         On a final note, the court recognizes that Hutchinson is suing Marshall in his individual capacity only. Doc. 70 at ¶ 5. Therefore, the automatic-substitution provision for public officers set forth in Rule 25(d) does not apply because that subsection is applicable only when a public officer who is a party in an official capacity dies while an action is pending. Fed.R.Civ.P. 25(d). Accordingly, for the reasons stated above, the undersigned RECOMMENDS that the motion to dismiss Marshall (Doc. 72) be GRANTED and that Hutchinson's claims against this defendant be DISMISSED WITHOUT PREJUDICE for failure to comply with Rule 25(a)(1).

         C. Motions to Dismiss the Nurse Defendants

         Hutchinson asserts a single claim against the Nurse Defendants for deliberate indifference to his serious medical needs in violation of the Fourteenth Amendment through 42 U.S.C. § 1983. The essence of this claim is that Hutchinson was placed in solitary confinement solely because of his need to use his CPAP machine, that the conditions of his confinement caused his mental health to deteriorate severely, that the Nurse Defendants were aware of his mental deterioration and knew that it was caused by the conditions of his confinement and that, despite this knowledge, they failed or refused to take any steps to address or to change the conditions of his confinement. The Nurse Defendants have moved to dismiss this claim arguing that it is barred by the statute of limitations, that the amended complaint is an impermissible shotgun pleading, and that Hutchinson fails to state a claim against them upon which relief can be granted. For the reasons that follow, the undersigned finds that the Nurse Defendants' motions should be denied.

         1. Statute of Limitations

         As a threshold issue, the Nurse Defendants argue that Hutchinson's deliberate indifference claim cannot proceed because it is untimely. The statute of limitations for claims brought pursuant to § 1983 is determined by the appropriate state statute of limitations governing personal injury claims. Crowe v. Donald, 528 F.3d 1290, 1292 (11th Cir. 2008); Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003). In Alabama, “that limitations period is two years.” Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011) (citing Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989) (“The two-year limitations period . . . applies to section 1983 actions in Alabama.”) (internal alterations omitted)); Ala. Code § 6-2-38(1).

         The question of when a § 1983 action accrues is governed by federal law. Parrish v. City of Opp, Ala., 898 F.Supp. 839, 842 (M.D. Ala. 1995) (citing Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987)). In § 1983 cases, “‘the statute [of limitations] does not begin to run until the facts which would support a cause of action are apparent to a person with a reasonably prudent regard for his rights.'” Calhoun v. Ala. Alcoholic Bev. Control Bd., 705 F.2d 422, 425 (11th Cir. 1983) (quoting Reeb v. Economic Opp. Atlanta, Inc., 516 F.2d 924, 930 (11th Cir. 1983)). Therefore, § 1983 cases “do not accrue until the plaintiff knows or has reason to know that he has been injured.” Mullinax, 817 F.2d at 716. “Nor will a Section 1983 action accrue until the plaintiff is aware or should have been aware who has inflicted the injury.” Id.

         The Nurse Defendants contend that the statute of limitations on Hutchinson's deliberate indifference claim began to run either in October 2014, when the Nurse Defendants became “well aware” of his mental deterioration, or on February 14, 2015, when an entry in his jail medical records informed the Nurse Defendants of his severe mental deterioration and that it was caused by the conditions of his confinement. The crux of the Nurse Defendants' argument is that if they were aware of Hutchinson's declining mental condition and its cause by October 2014 or February 14, 2015, at the latest, then Hutchinson should have also been aware of his declining mental condition by that same time, making the filing deadline for his deliberate indifference claim two years from February 14, 2015-or by February 14, 2017-at the latest. According to the Nurse Defendants, because Hutchinson did not file his lawsuit until March 29, 2017, his § 1983 deliberate indifference claim against them should be dismissed as untimely.

         The Nurse Defendants call this conclusion “axiomatic, ” but the undersigned is less certain of its logic or support in the law. The Nurse Defendants are asking the court to assume that if they were subjectively aware of Hutchinson's declining mental health and its cause by a certain date, then Hutchinson also must have been aware of his mental decline and its cause by that same time because the Nurse Defendants cannot know something about Hutchinson that he himself does not know. This is a logical leap the undersigned is unwilling to make. The fact that A knows B about C does not equate to C knowing B about C, particularly when C is experiencing a severe mental deterioration rendering him “unable to understand [its] cause and communicate his needs, ” as Hutchinson is alleged to have been experiencing during the same time the Nurse Defendants are alleged to have become aware of his declining mental condition and its cause.

         Indeed, the Nurse Defendants acknowledge that, in § 1983 cases, the statute of limitations does not begin to run until the facts that would support a cause of action are apparent to a person with reasonably prudent regard for his rights. Calhoun, 705 F.2d at 425. Put differently, § 1983 actions do not accrue until the plaintiff-not the defendant- knows or has reason to know that he has been injured and who inflicted the injury. Chappell, 340 F.3d at 1283. In this case, the alleged facts illustrate that the very injury on which Hutchinson's claims are based significantly compromised his ability to appreciate that he had, in fact, been injured. Taking as true the allegations in the amended complaint establishing that Hutchinson lacked the mental capacity to understand fully that he was being injured and who was inflicting this injury, the undersigned cannot say that it is facially apparent from the amended complaint when Hutchinson knew or had reason to know that he was being injured by the Nurse Defendants' deliberate indifference to his serious medical needs. It follows that, since a Rule 12(b)(6) dismissal on statute-of-limitations grounds is appropriate “only if it is facially apparent that the claim is time-barred, ” the undersigned cannot recommend dismissal of Hutchinson's deliberate indifference claim against the Nurse Defendants based on the statute of limitations. Baker v. Sanford, 484 Fed.Appx. 291, 292 (11th Cir. 2012) (citing Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir. 2005)).

         Moreover, even if it was facially apparent from the amended complaint that Hutchinson knew or should have known by October 2014 or February 14, 2015, at the latest, that the Nurse Defendants were injuring him, the undersigned would not recommend dismissal of his deliberate indifference claim against these defendants on statute-of-limitations grounds because he adequately alleges a “continuing violation” of the law. The continuing violation doctrine is an exception to the general rule regarding the statute of limitations. Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003). This doctrine allows “a plaintiff to sue on an otherwise time-barred claim when additional violations of the law occur within the statutory period.” Robinson v. United States, 327 Fed.Appx. 816, 818 (11th Cir. 2007) (citing Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1221 (11th Cir. 2001)). “When the violation alleged involves continuing injury, the cause of action accrues, and the limitations period begins to run, at the time the unlawful conduct ceases.” Id. (citing Donaldson v. O'Connor, 493 F.2d 507, 529 (5th Cir. 1974) (holding that a § 1983 action brought by a former mental patient for continuous civil confinement without psychiatric treatment did not accrue until the patient was released), vacated on other grounds by O'Connor v. Donaldson, 422 U.S. 563 (1975)). “The critical distinction in continuing violation analysis . . . is whether the plaintiff complains of the present consequence of a one-time violation, which does not extend the limitations period, or the continuation of a violation into the present, which does.” Id. (internal quotation marks and alterations omitted).

         Hutchinson alleges that he was placed in solitary confinement solely because of his CPAP machine, that this placement was done for the convenience of jail personnel rather than for a disciplinary or behavioral reason, that the conditions of solitary confinement (constant lights, limited showers, limited exercise and activities, and limited contact with other inmates) caused him to suffer a severe mental decline, that the Nurse Defendants observed his mental decline on a daily basis and knew that it was directly related to the conditions of his confinement, and that, despite this knowledge, the Nurse Defendants intentionally failed and refused to take any steps to address the conditions of his confinement or to have those conditions changed. Hutchinson was instead housed in solitary confinement for the entire length of his incarceration at the County Jail- approximately eight months.

         The undersigned finds these allegations sufficient to demonstrate a continuing violation of Hutchinson's rights. Critically, Hutchinson is not complaining of the present consequences of a one-time violation of his rights, despite the Nurse Defendants' misplaced protestations that Hutchinson's initial placement in solitary confinement on September 12, 2014, and their subsequent failure to address the conditions of his confinement on February 14, 2015 were one-time, discrete injuries that started the limitations clock running. Hutchinson is instead complaining that the Nurse Defendants violated his rights each day they acquiesced in his solitary confinement, despite knowing the devastating effects it was having on his mental health, and still took no action to have the conditions of his confinement changed. Complaints of daily and continuing violations of one's rights, including a defendant's knowledge of the need to provide medical care and refusal to provide that care, are continuing violations for statute-of-limitations purposes. See Baker, 484 Fed.Appx. at 293 (explaining that “an allegation of a failure to provide needed and requested medical attention constitutes a continuing tort” and holding that the failure to provide medical attention for plaintiff's ongoing fungal infection was a continuous injury) (internal quotation marks omitted)); Smith v. Shorstein, 217 Fed.Appx. 877, 881 (11th Cir. 2007) (holding that a plaintiff's continued incarceration after his sentence expired was a continuing violation that did not end until he was released from prison); Robinson, 327 Fed.Appx. at 819-20 (recognizing that the failure to treat a hernia condition was a continuing violation until hernia surgery was performed and that continuing to expose the plaintiff to scabies was a continuing violation until he was removed from the scabies source); Dunn v. Dunn, 219 F.Supp.3d 1100, 1119 (M.D. Ala. 2016) (“[I]t would be nonsensical . . . to conclude that once some harm has occurred, a prisoner must bring a claim within a certain period of time, even though the conduct of the defendants that is creating the risk continues unabated.”); Brown v. Roberts, 2010 WL 1258028, at *1-2 (M.D. Ga. Mar. 26, 2010) (explaining that the “[r]efusal to provide medical treatment has been held to constitute a continuing violation” and holding that a doctor's failure to order appropriate medical treatment and to notify officials that the plaintiff should not be exposed to extreme heat because of his medical conditions was a continuing violation that did not end until the plaintiff was transferred to another prison).

         In this case, the continuing violations of Hutchinson's rights did not end until he was transferred from solitary confinement in the County Jail to the City Jail on April 28, 2015.[6] That is the earliest date on which the limitations period for his § 1983 deliberate indifference claim began to run, and Hutchinson had two years from that date-or until April 28, 2017-to file his deliberate indifference claim against the Nurse Defendants. Since he filed his lawsuit on March 29, 2017, within the April 28 deadline, the undersigned concludes that his § 1983 deliberate indifference claim against the Nurse Defendants is timely.[7]

         2. Sufficiency of the ...


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