United States District Court, S.D. Ohio, Eastern Division
L. GRAHAM JUDGE
REPORT AND RECOMMENDATION AND ORDER
Terence P. Kemp United States Magistrate Judge.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
Motion to Dismiss
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.
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
Hendricks filed an uncharacteristically brief three-paragraph
response. The gist of his argument is that his action was
brought well within the statute of ...