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Hendricks v. Mohr

United States District Court, S.D. Ohio, Eastern Division

May 31, 2017

Benjamin Hendricks, Plaintiff,
v.
Gary Mohr, et al., Defendants.

          JAMES L. GRAHAM JUDGE

          REPORT AND RECOMMENDATION AND ORDER

          Terence P. Kemp United States Magistrate Judge.

         This matter is before the Court on a motion to dismiss filed by defendants Anthony Ayers, Dr. Arthur Hale, Dr. Andrew Eddy, John Gardner, Director Gary Mohr, Stuart Hudson and the State of Ohio on behalf of certain unserved defendants. Plaintiff Benjamin Hendricks has filed a response and the motion has been fully briefed. For the following reasons, the Court will recommend that the motion to dismiss be granted in part and denied in part.

         I. Background

         A. Procedural History

         Mr. Hendricks submitted his original complaint relating to the claims he is attempting to pursue in this case in August, 2012. At that point, Robert Austin was a co-plaintiff and the case was assigned Case No. 2:12-cv-729. The complaint named as defendants Mr. Ayers, Dr. Eddy, Mr. Gardner, Dr. Hale, Governor John Kasich, Dr. Khan, Gary Mohr, Mona Parks, and 50 John/Jane Does. Upon initial screening in October, 2012, then assigned Magistrate Judge Abel directed the Clerk to open a separate case to address Mr. Austin's claims. That case was opened as Austin v. Kasich, Case No. 2:12-cv-983 and was closed on December 1, 2015. Mr. Hendricks remained as the named plaintiff in Case No. 2:12-cv-729.

         In the initial screening Report and Recommendation in that case, Magistrate Judge Abel recommended that Mr. Hendricks' claims against Ms. Parks, Dr. Hale, Dr. Khan and Mr. Ayres be dismissed for failure to state a claim. He further recommended that Mr. Hendricks' claims against Governor Kasich, Mr. Mohr, Dr. Eddy, and Mr. Gardner be permitted to proceed because he had stated a claim for a violation of his Eighth Amendment rights arising from the alleged denial of medical care. More specifically, the Magistrate Judge found that, for screening purposes, Mr. Hendricks had stated a claim relating to his shoulder prosthesis against Dr. Eddy and Mr. Gardner; a claim relating to his hernias against Mr. Gardner; and a claim relating to alleged cost cutting measures resulting in the denial of treatment against Governor Kasich and Director Mohr. The Magistrate Judge recommended the dismissal of Mr. Hendricks' claims relating to his Crohn's disease, diversion colitis, and pain management. By order dated May 21, 2013, the assigned District Judge granted Governor Kasich's motion to dismiss and adopted and affirmed Judge Abel's Report and Recommendation.

         Shortly following the Court's order, the Court of Appeals issued its decision in LaFountain v. Harry, 716 F.3d 944 (6th Cir. 2013), holding that, “under Rule 15(a) a district court can allow a plaintiff to amend his complaint even when the complaint is subject to dismissal under the PLRA.” Id. at 951. Consequently, by order dated May 16, 2014, Mr. Hendricks was granted leave to amend his complaint in Case No. 2:12-cv-729, in part. That order described Mr. Hendricks' proposed amendments as follows:

Mr. Hendricks seeks to add four previously unnamed defendants - Steve Huffman, Stuart Hudson, Christine Hall, and Dr. Christiansen, also referred to as Dr. Christenson. He also seeks to revive his previously dismissed claims in this case relating to his medical conditions, which are exceedingly well-documented in the records of this Court, including a shoulder prosthesis, ventral and parastomal hernias, pain management, Crohn's disease and diversion colitis. The Court's reading of the proposed amended complaint is borne out by Mr. Hendricks' reply which contains, in response to defendants' opposition, his more specific intentions in seeking to amend.

         The Court permitted Mr. Hendricks to amend his complaint as it related to his claim that he had been denied medical treatment for his shoulder prosthesis against Dr. Eddy and Mr. Gardner to include allegations directed to Ms. Hall, Dr. Christenson, Dr. Hale, Dr. Khan, and Mr. Ayres. The Court further permitted Mr. Hendricks to amend his complaint as it related to his Crohn's disease to assert a claim against Dr. Hale, Dr. Khan, and Mr. Ayres. Additionally, the Court allowed Mr. Hendricks to include a claim relating to his diversion colitis against Mr. Gardner, Ms. Hall, Dr. Eddy, Dr. Christenson, Dr. Hale, Dr. Khan, and Mr. Ayres. The Court denied, on grounds of futility, Mr. Hendricks' claim relating to his ventral and parastomal hernias and his claim relating to pain management. With respect to both of these claims, the Court concluded that Mr. Hendricks had alleged nothing beyond a difference of opinion regarding his medical care insufficient to state a constitutional claim under the Eighth Amendment. Finally, the Court permitted an amendment to include a claim for declaratory or injunctive relief only as to Mr. Hudson, Mr. Huffman, and Director Mohr and relating only to Mr. Hendricks' claim regarding his shoulder. The Court directed Mr. Hendricks to file an amended complaint consistent with the order within fourteen days of its date.

         Mr. Hendricks did not file an amended complaint as directed. Rather, on May 21, 2014, he filed a motion to voluntarily dismiss his complaint without prejudice. On July 24, 2014, the Court issued a Report and Recommendation recommending that Mr. Hendricks' unopposed motion be granted. This Report and Recommendation was adopted by order dated November 25, 2014 and judgment was entered that same date.

         On October 5, 2015, Mr. Hendricks filed a motion to reopen the case, relying, at least to some extent, on Ohio's Savings Statute. That motion, which defendants opposed on grounds of personal jurisdiction and Mr. Hendricks' failure to file an amended complaint as directed, was granted by order dated March 15, 2016. That order, directing the opening of this case, Case No. 2:15-cv-3130, stated:

... The Clerk shall open a new civil action. The effective filing date of that action is October 5, 2015. A copy of the motion to reopen and all subsequent filings in this case, including this Opinion and Order, shall be docketed in the newly-filed case. Mr. Hendricks shall file a complaint under the new case number within 30 days of the date of this order. He is responsible for paying the filing fee for that action, which he should do within thirty days, and for serving the complaint on the defendants, unless he applies for and is granted in forma pauperis status. Mr. Hendricks should contact the Clerk's office regarding his request for copies of any prior filings in this case.

         Almost immediately, Mr. Hendricks requested an extension of time to file his complaint. Ultimately, on August 30, 2016, Mr. Hendricks filed his current complaint. The moving Defendants filed their motion to dismiss on January 19, 2017.

         B. Current Complaint

         Mr. Hendricks' current complaint names as defendants Director Mohr, Dr. Eddy, Mr. Gardner, John DesMarais, Dr. Hale, Dr. Khan, Mr. Ayres, Mr. Huffman, Mr. Hudson, Ms. Hall, Dr. Christenson, Dr. Akasubo, and 50 John/Jane Does, in both their individual and official capacities. The complaint sets forth claims relating to Mr. Hendricks' alleged denial of medical care for his left shoulder prosthesis, Crohn's disease, and diversion colitis. Mr. Hendricks also includes claims for the denial of medical care relating to his ventral and parastomal hernias and pain management.

         As explained above, Mr. Hendricks' current complaint is the third iteration of his claims relating to his various medical conditions. The Court will not include a detailed explanation of these claims here for two reasons. First, they have been extremely well-documented over the course of Mr. Hendricks' litigation. More importantly, however, a detailed discussion of their nature is not necessary to a resolution of the motion to dismiss. Rather, as explained below, the basis of the Defendants' motion is that Mr. Hendricks' claims are barred by the statute of limitations. The Court will address the details of Mr. Hendricks' claims only to the extent that they bear on this issue. It is to that motion that the Court will now turn.

         C. Motion to Dismiss

         In the motion to dismiss, Defendants first note that service has not been executed on Dr. Christenson, Ms. Hall, Dr. Akusoba, Dr. Khan, or Mr. Huffman. Further, they note that Mr. Hendricks' current complaint does not comply with the Court's order denying the motion to amend to the extent Mr. Hendricks seeks to assert claims relating to his hernias and alleged improper pain management.

         More substantively, Defendants contend that Mr. Hendricks' claims in his original complaint arose more than two years prior to the submission date of his original complaint on August 10, 2012. As a result, they assert, Mr. Hendricks' claims are barred by the two-year statute of limitations applicable to claims brought under 42 U.S.C. §1983. As Defendants read the allegations of Mr. Hendricks' complaint, June 21, 2010 is the last date by which he could have known of any injury relating to his shoulder, the treatment for his Crohn's disease was stopped after a few infusions beginning in September, 2008, and he was not treated for his colitis after his 2009 surgery. They explain that, because Mr. Hendricks' complaint was untimely in the first instance, the Ohio Savings Statute is inapplicable here. They also assert that they are entitled to qualified immunity.

         Mr. Hendricks filed an uncharacteristically brief three-paragraph response. The gist of his argument is that his action was brought well within the statute of ...


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