Ashdown v. Buchanan

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Brandon J. Ashdown,

Plaintiff,

v. Case No. 2:17-cv-495

Tim Buchanan, et al.,

Defendants.

OPINION AND ORDER

This matter is before the court for consideration of the

magistrate judge’s February 3, 2021, report and recommendation on

the August 11, 2020, motion to dismiss filed by eleven of the

defendants. Doc. 119. Defendants argue that the claims against

them are time-barred; that the official capacity claims against

certain of the defendants are barred by the Eleventh Amendment; and

that plaintiff’s claims based on respondeat superior liability fail

to state a claim for relief. The magistrate judge recommended

granting the motion to dismiss based on statute of limitations

grounds. Plaintiff has filed objections, see Doc. 158, and the

defendants have filed a response, see Doc. 159.

I. Standards of Review

If a party objects within the allotted time to a report and

recommendation, the court “shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. §636(b)(1);

see also Fed. R. Civ. P. 72(b). Upon review, the Court “may

accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C.

§636(b)(1).

In ruling on a motion to dismiss under Rule 12(b)(6), the

court must construe the complaint in a light most favorable to the

plaintiff, accept all well-pleaded allegations in the complaint as

true, and determine whether plaintiff undoubtedly can prove no set

of facts in support of those allegations that would entitle him to

relief. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir. 2008);

Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). To

survive a motion to dismiss, the “complaint must contain either

direct or inferential allegations with respect to all material

elements necessary to sustain a recovery under some viable legal

theory.” Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).

A motion for dismissal pursuant to Rule 12(b)(6) will be

granted if the claim shows on its face that relief is barred by an

affirmative defense. Riverview Health Institute LLC v. Medical

Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010). A motion to

dismiss under Rule 12(b)(6) on statute of limitations grounds

should be granted when the statement of the claim affirmatively

shows that the plaintiff can prove no set of facts that would

entitle him to relief. New England Health Care Employees Pension

Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003);

Rauch v. Day and Night Manuf. Corp., 576 F.2d 697, 702 (6th Cir.

1978)(holding that a limitations defense may be raised by a Rule 12

motion).

II. History of the Case

A. Original and First Amended Complaints

On June 12, 2017, plaintiff Brandon J. Ashdown, an Ohio

inmate, filed the instant civil rights action pursuant to 42 U.S.C.

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§1983 against Tim Buchanan, the warden of the Noble Correctional

Institution (“NCI”), and Charles Bradley, the warden of the

Franklin Medical Center (“FMC”). On August 7, 2017, plaintiff

filed his first amended complaint which named additional

defendants, specifically, Vanessa Sawyer, alleged to be the “head”

of the medical unit at NCI, “FMC, Transport Staff,” and “FMC,

Doctors, and Staff.” Doc. 7.

Plaintiff alleged in his first amended complaint that his

rights under the Eight Amendment were violated by the above

defendants. Plaintiff alleged that he had hernia surgery on June

5, 2015; that after being given an hour to recuperate following

surgery, he was handcuffed, belly chained, shackled and taken in a

wheel chair to an inmate holding cage, where he was ordered by a

corrections officer to sit on a wooden bench with no back support;

and that he sat on a wooden bench for more than three hours before

being transported back to FMC. Plaintiff further alleged that on

June 10, 2015, before being transported to NCI, he was again

handcuffed, belly chained and shackled and placed in a room with a

hard steel bench, where he sat in pain for six-and-a-half hours.

Plaintiff stated that he arrived at NCI after the doctor had left

for the day, and that the next day, the doctor discontinued his

pain medication. However, this doctor was not named as a defendant

in the caption of the complaint. Plaintiff alleged that he

submitted a written informal complaint to Sawyer, and received a

“belligerent response.” Plaintiff was given pain medication two

weeks later, although plaintiff did not feel that this medication

was strong enough. Plaintiff sought compensatory and punitive

damages against the defendants.

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On September 27, 2017, the three named defendants moved to

dismiss the claims against them pursuant to Fed. R. Civ. P.

12(b)(6) for failure to state a claim upon which relief can be

granted. Doc. 15. On February 2, 2018, the court adopted the

report and recommendation of the magistrate judge and granted the

motion to dismiss the named defendants. Doc. 32.

B. Motions for Extensions of Time to Amend Complaint

On February 5, 2018, the magistrate judge entered an order

giving plaintiff sixty days to engage in discovery and to file an

amended complaint identifying the unnamed FMC transport staff and

FMC staff defendants. Doc. 33. On March 29, 2018, the State of

Ohio entered a limited appearance in the case as an interested

party to litigate matters relating to any unnamed defendants who

might later become named defendants. Doc. 36. Plaintiff filed

numerous motions to extend the deadline for filing an amended

complaint. These motions were granted, resulting in extensions

through January 27, 2019. See Doc. 38 (granting Doc. 35 and

extending deadline for amendment to June 8, 2018); Doc. 42

(granting Doc. 41 and extending deadline for amendment to July 28,

2018); Doc. 45 (extending deadline for amendment to September 23,

2018); Doc. 52 (granting Doc. 50 and extending deadline for

amendment to November 26, 2018); Doc. 55 (granting Doc. 54 and

extending deadline for amendment to January 27, 2019).

On January 23, 2019, plaintiff requested and received another

extension to amend his complaint 60 days after the court’s ruling

on the State’s August 24, 2018, motion to dismiss due to

plaintiff’s failure to exhaust his administrative remedies. See

Docs. 48 and 58. The motion for an extension of time to amend was

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granted on January 25, 2019. Doc. 59. After converting the motion

to dismiss to one for summary judgment, the court denied that

motion on September 12, 2019, concluding that a genuine dispute of

fact existed as to whether plaintiff had properly exhausted his

administrative remedies. Doc. 85. Under the magistrate judge’s

previous order, this extended the deadline for amendment to

November 12, 2019.

On September 25, 2019, the magistrate judge entered an order

appointing counsel to represent the plaintiff. Doc. 86. Another

delay of over three months ensued while plaintiff debated whether

to accept counsel’s representation. On November 12, 2019,

plaintiff filed a motion to extend the deadline for signing the

engagement letter. Doc. 96. On November 13, 2019, the deadline

for signing the engagement letter was extended to December 26,

2019. Doc. 97. According to a docket entry, plaintiff finally

signed the engagement letter on December 31, 2019. At a status

conference held on January 8, 2020, plaintiff was ordered to file

an amended complaint by January 17, 2020. Doc. 100.

C. Second Amended Complaint

On January 17, 2020, almost two years after the magistrate

judge’s first order authorizing an additional period of time for

amending the complaint, plaintiff, through counsel, filed a second

amended complaint, naming as defendants Vanessa Sawyer, NCI Health

Care Administrator; David Weil, M.D., the medical director at FMC;

and Doe Defendants Nos. 1-5. Doc. 100. Defendants “FMC, Transport

Staff” and “FMC, Doctors, and Staff” were no longer named as

defendants. Plaintiff alleged that he was shackled following his

surgery by Doe No. 1 and was told to sit on a bench in the holding

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cell; that Doe No. 2 at FMC refused to give him his prescribed

medications and substituted a single Tylenol twice a day; that

before being transported to NCI on June 10, 2015, Doe No. 3

shackled him and put him in the transport waiting room, where he

was on a steel bench for 6-1/2 hours; and that at NCI, Doe No. 4

refused to provide any pain medications. No facts were alleged

regarding Doe No. 5. Plaintiff further alleged that defendant

Sawyer did not provide him with adequate medication, and that Dr.

Weil implemented policies regarding the transportation of inmates

after surgery and providing inmates with prescribed medications

which violated plaintiff’s Eighth Amendment rights.

On February 25, 2020, motions to dismiss were filed on behalf

of defendants Sawyer, Weil, and Does Nos. 1-5. Docs. 105 and 106.

On March 18, 2020, the magistrate judge filed a preliminary

pretrial order which stated that motions to amend the complaint

would be due by July 3, 2020. Doc. 109. On July 1, 2020,

plaintiff moved to extend the deadline for amendment to July 24,

2020, which was granted. Doc. 114. On July 24, 2020, plaintiff

filed a motion for leave to file the third amended complaint

instanter. Doc. 115. The motion for leave to file was granted,

and the February 25, 2020, motions to dismiss were denied as moot.

Doc. 116. The third amended complaint was entered on the docket on

July 28, 2020. Doc. 117.

D. Third Amended Complaint

The third amended complaint named Sawyer, Weil, and ten

additional defendants: Richard Clark, M.D. and Glenn Frederick

Elliott, M.D., who are NCI administrative physicians; Tamara Sue

Salyer, Fat Me Sylla, Theresa Boan, and Chauncy N. Livingston, II,

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who are nurses at FMC; and Bryan Kinney, Michael Boehm, Ed Young,

and Mark Winters. The last four defendants, employees of the

Belmont Correctional Institution, not FMC, were assigned to FMC

transport duty at the time of the events alleged by plaintiff.

E. Defendants’ Motion to Dismiss

On August 11, 2020, the State of Ohio filed a motion to

dismiss the third amended complaint against Dr. Weil and the ten

newly named defendants. Doc. 119. These defendants argued that

plaintiff’s claims against them were barred by the two-year statute

of limitations applicable to §1983 actions in Ohio, and that his

third amended complaint did not relate back to previous complaints

under Fed. R. Civ. P. 15(c)(1)(C). Defendants further argued that

the claims against these defendants should be dismissed pursuant to

Fed. R. Civ. P. 4(m) due to plaintiff’s failure to serve them

within ninety days after the complaint was filed. Noting that

plaintiff’s third amended complaint specified that the defendants

were being sued in both their official and individual capacities,

defendants moved to dismiss the official capacity claims for

monetary damages on Eleventh Amendment grounds. Finally,

defendants argued that the individual capacity claims should be

dismissed to the extent that plaintiff’s claims were based on

respondeat superior liability. Plaintiff opposed the motion,

arguing that the statute of limitations should be equitably tolled

and that the time period for service under Rule 4(m) should be

extended.

F. Report and Recommendation

On February 3, 2021, the magistrate judge issued a report and

recommendation on the motion to dismiss. The injuries alleged in

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this case occurred on June 4-10, 2015. The magistrate judge

applied the two-year statute of limitations for §1983 actions in

Ohio. See Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir.

1989). The magistrate judge cited cases for the proposition that

the limitations period was tolled while plaintiff pursued his

administrative remedies, see Hollis v. Erdos, 480 F. Supp.3d 823,

830 (S.D. Ohio 2020), and while his application for leave to

proceed in forma pauperis was pending, see Walker v. Lakewood, 742

F. Supp. 429, 432 (N.D. Ohio 1990). Taking these additional time

periods into account, the magistrate judge calculated that the

limitations period ran until March 5, 2018.

The magistrate judge correctly concluded that the relation

back provision in Fed. R. Civ. P. 15(c)(1)(C) did not save

plaintiff’s claims against the newly named defendants from the

operation of the statute of limitations bar. See Brown v. Cuyahoga

County, Ohio, 517 F. App’x 431, 435 (6th Cir. 2013)(plaintiff who

files a §1983 complaint against John Doe defendants and then seeks

to amend the complaint with names after the statute of limitations

has run is barred from doing so; the failure to identify the

defendants by name in the original complaint was not a mistake

concerning the party’s identity, and adding new defendants is

considered a change in parties, not a mere substitution). The

magistrate judge further found that plaintiff had failed to meet

his burden of showing that equitable tolling should apply, and

recommended granting the motion to dismiss based on the statute of

limitations bar.

Although dismissal of the claims against these defendants

based on the limitations bar would render the remaining arguments

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moot, the magistrate judge also discussed the other arguments made

by defendants. The magistrate judge found that plaintiff had not

shown good cause or excusable neglect for his failure to perfect

service within the time period specified in Rule 4(m); that any

claims for monetary damages against defendants in their official

capacities were barred by the Eleventh Amendment; and that

plaintiff adequately pleaded claims of medical indifference against

the defendants in their individual capacities which were not

implicitly based solely on supervisory ability.

This matter is now before the court on plaintiff’s objections

to the report and recommendation.

III. Plaintiff’s Objections

A. Equitable Tolling

Plaintiff objects to the conclusion of the magistrate judge

that the statute of limitations in this case should not be

equitably tolled. The Sixth Circuit has held that where a state’s

statute of limitations is borrowed for §1983 claims, the state’s

tolling rules are also applied unless they are inconsistent with

federal law or policy. Roberson v. Macnicol, 698 F. App’x 248, 250

(6th Cir. 2017)(citing Johnson v. Memphis Light Gas & Water Div.,

777 F.3d 838, 842 (6th Cir. 2015)). However, regardless of whether

Ohio’s equitable tolling rules or federal equitable tolling

principles are applied, this court’s decision would be the same.

The magistrate judge correctly concluded that plaintiff failed to

show grounds for equitable tolling in this case.

Ohio courts have rarely invoked the doctrine of equitable

tolling. Weikle v. Skorepa, 69 F. App’x 684, 687 (6th Cir. 2003).

A litigant seeking equitable tolling must show that he has

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‘“diligently pursued his rights, but some extraordinary

circumstance stood in his way and prevented timely action.”’

Antioch Company Litigation Trust v. Morgan, 644 F. App’x 579, 583

(6th Cir. 2016)(quoting Coleman v. Columbus State Comm. Coll., 49

N.E.3d 832, 838 (Ohio App. 2015)). Equitable tolling under Ohio

law is to be applied sparingly and only in exceptional

circumstances. G.G. Marck and Associates, Inc. v. Peng, 762 F.

App’x 303, 312 (6th Cir. 2019).

Ohio courts have also held that equitable estoppel required a

showing of actual or constructive fraud by a party in the form of

representations that the statute of limitations was larger than it

actually was, promises of a better settlement if a lawsuit was not

filed, or other similar representations. Weikle, 69 F. App’x at

688 (citing Sabouri v. Ohio Dept. of Job & Family Serv., 145 Ohio

App.3d 651 (Ohio App. 2001)); Doe v. Blue Cross/Blue Shield of

Ohio, 79 Ohio App.3d 369 (Ohio App. 1992)(estoppel requires proof

that defendant made a factual misrepresentation that was

misleading, that induced actual reliance that was reasonable and in

good faith, and that caused detriment to the relying party).

Federal courts also apply equitable tolling “sparingly.”

Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d

552, 560 (6th Cir. 2000). A plaintiff who fails to pursue his

rights diligently is not eligible for tolling. Id. Under Andrews

v. Orr, 851 F.2d 146, 151 (6th Cir. 1988), factors to consider

include a plaintiff’s lack of actual notice or constructive

knowledge of the filing requirement, plaintiff’s diligence in

pursuing his rights, and absence of prejudice to the defendant.

However, the absence of prejudice is not an independent basis for

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invoking the doctrine of equitable tolling. 3799 Mill Run

Partners, LLC v. City of Hilliard, Ohio, 839 F. App’x 948, 951 (6th

Cir. 2020)(citing Baldwin County Welcome Ctr. v. Brown, 466 U.S.

147, 152 (1984)). The party seeking equitable tolling bears the

burden of proving he is entitled to it. Zappone v. United States,

870 F.3d 551, 556 (6th Cir. 2017); Robertson v. Simpson, 624 F.3d

781, 784 (6th Cir. 2010).

A defendant’s pro se status does not entitle him to equitable

tolling. Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 464

(6th Cir. 2012). Further, a pro se party is not relieved of the

responsibility to comply with basic rules of court. McNeil v.

United States, 508 U.S. 106, 113 (1993). See Jourdan v. Jabe, 951

F.2d 108, 109 (6th Cir. 1991)(pro se parties must comply with

procedural rules); Marshall v. Ohio Dept. of Rehab. and

Corrections, Case No. 2:14-cv-338, 2016 WL 109806, at *3 (S.D. Ohio

Jan. 11, 2016)(pro se status of state inmate did not allow him to

ignore the procedural rules for discovery).

Defendants argued that plaintiff failed to exercise due

diligence in amending his complaint to identify the John Doe

defendants. Defendants contended that the State’s failure to learn

the identity of transport officers sooner was due to: plaintiff’s

failure to provide the necessary information in his grievances or

complaint; the fact that he waited over two years from the events

in question to commence this action; and the fact that he

identified these defendants in his first amended complaint as “FMC

Transport Staff” when in fact, as the State later learned, these

officers were employees of the Belmont Correctional Institution.

Plaintiff argued in response that he aggressively pursued this

11

action and that he was thwarted by the State’s lack of response to

his discovery requests.

The parties submitted no evidence on the issue of equitable

tolling with their memoranda on the motion to dismiss. The

statements of counsel in their memoranda are not evidence. Tapco

Products Co. v. Van Mark Products Corp., 446 F.2d 420, 429 (6th

Cir. 1971)(unsworn self-serving statements of counsel are not

evidence); Overlook Mut. Homes, Inc. v. Spencer, 666 F. Supp.2d

850, 853, n. 3 (S.D. Ohio 2000)(statements of counsel in memorandum

are not evidence); Bond v. Antero Resources Corp., 328 F.R.D. 187,

194 (S.D. Ohio 2018)(conclusory assertions of counsel are not

evidence). Thus, the court will look, as the magistrate judge did,

to the history of this case. See Kreipke v. Wayne State Univ., 807

F.3d 768, 774 (6th Cir. 2015)(court can consider items appearing in

the record of the case in ruling on a motion to dismiss); Bassett

v. Nat’l Collegiate Athletic Assn., 528 F.3d 426, 430 (6th Cir.

2008)(same).

The magistrate judge correctly concluded that plaintiff failed

to meet his burden of showing that his failure to comply with the

statute of limitations unavoidably arose from circumstances outside

of his control. The magistrate judge noted that plaintiff failed

to comply with Ohio Admin. Code §5120-9-31(K), now codified at Ohio

Admin. Code §5120-9-31(J), when submitting his informal complaints.

That provision states that if the inmate does not know the name of

the person who allegedly caused his injury, he must provide a

physical description of the person. Plaintiff’s grievances and

letter to the Chief Inspector’s Office, see Docs. 73-6, 73-7,

reveals that he did not comply with this provision. The magistrate

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judge concluded that although, as plaintiff alleged, the State had

documents which eventually led to the identification of the newly-

added defendants, plaintiff had information which would have

assisted the State in identifying the transport guards sooner.

Plaintiff argues that this last observation was a factual

finding, and that the magistrate judge should have converted the

motion to dismiss into a motion for summary judgment. However,

plaintiff submitted no evidence with his response to the motion to

dismiss which would have alerted the magistrate judge that the

motion to dismiss should be converted to one for summary judgment.

Plaintiff did not move to convert the motion to dismiss so that he

could present evidence on the issue of his failure to comply with

§5120-9-31(K) or on the issue of equitable tolling in general.

Given the amount of detail concerning the alleged events provided

by plaintiff in his first amended complaint, despite the fact that

it was filed more than two years after the alleged events, it was

not unreasonable for the magistrate judge to conclude that

plaintiff would have been able to provide a physical description of

the transport guards and medical staff as required under §5120-9-

31(K) in a grievance submitted shortly after these events. It

would also be reasonable to expect that plaintiff, who experienced

the alleged injuries, would have some recollection of the events

alleged in the complaint which would enable him to make appropriate

discovery requests. Even if the magistrate judge’s finding is

disregarded, there is no evidence that plaintiff lacked knowledge

which would have assisted both him and the State in identifying the

unnamed defendants.

The magistrate judge also relied on the fact that plaintiff

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was granted multiple extensions to engage in discovery to identify

the unnamed defendants.1 On February 5, 2018, plaintiff was

granted sixty days to engage in discovery and to amend his

complaint to identify the “FMC Transport Staff and “FMC Doctors and

Staff” defendants. Plaintiff sought and was granted numerous

extensions of this deadline. The second amended complaint, which

named only defendants Sawyer, Weil, and Doe Defendants No. 1-5, was

not filed until January 17, 2020, after counsel was appointed.

The record does not support plaintiff’s claim that he has

aggressively prosecuted his case. He requested numerous extensions

of the deadline for amending his complaint, but during the lengthy

period of extensions, the record reflects that only one motion to

compel discovery was filed by plaintiff, that being on June 22,

2018. Doc. 43. This motion was based on a May 10, 2018, request

by plaintiff to be provided with the names of the individuals who

transported him between FMC and the hospital and the name of the

chief medical officer of FMC. On July 6, 2018, counsel for the

State responded to the motion by supplying the name of Dr. David

Weil as the person who was the FMC chief medical officer at the

time of the events alleged in plaintiff’s complaint. Doc. 44.

Counsel indicated that he was continuing to look for records

identifying the transport officers.

In a discovery status report filed on August 24, 2018, Doc.

1The court does not agree with the magistrate judge’s

observation, Doc. 155 at p. 16, that these extensions have

arguably already equitably tolled the statute of limitations in

this case. Granting leave to amend the complaint did not

automatically establish grounds for equitable tolling or

guarantee that the subsequently filed amended complaint would be

immune from dismissal based on a limitations bar.

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49, counsel for the State submitted the affidavit of Jill Glispie,

a warden’s assistant at FMC, who stated: that the FMC shift logs

did not specifically identify transport officers; that the FMC

infirmary logs only tracked FMC inmates, not transitional inmates

such as plaintiff; that there were logs for tracking the receiving

and discharge of inmates, but that when FMC switched computer

servers, the logs for 2015 were deleted; and that no records at FMC

identified who transported plaintiff on June 5, 2018. Doc. 49, Ex.

1. Plaintiff did not respond to this notice until January 28,

2019. He did so by filing a motion for default judgment pursuant

to Fed. R. Civ. P. 37 as a sanction for the State’s failure to

provide him with the requested discovery. In an order filed on

July 18, 2019, this court denied the motion for default. Doc. 76.

The court noted that although the magistrate judge had found that

the State’s response to plaintiff’s discovery request was

inadequate, there was no evidence that the State’s delay in

responding to that request was due to willfulness, bad faith or

fault, and that plaintiff had not shown that the State deliberately

failed to cooperate in discovery.

The affidavit of Ms. Glispie does not support plaintiff’s

claim that the State deliberately obstructed his efforts to obtain

the names of the transport officers. Even if the affidavit is not

considered, there is simply no evidence to support plaintiff’s

contention that the State sabotaged or resisted his discovery

efforts. The fact that he requested numerous extensions of the

deadline to amend his complaint is not sufficient to show that he

aggressively sought discovery from the State. With the exception

of the discovery request which was the subject of the June 22,

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2018, motion to compel, there is no evidence in the record of any

other discovery requests which were made by plaintiff.

The record does not support the application of equitable

tolling of the statute of limitations in regard to plaintiff’s

claim against Dr. Weil. The record indicates that the State

provided plaintiff with notice of the identity of Dr. Weil on July

6, 2018, see Doc. 44, yet Dr. Weil was not named as a defendant in

this case until the second amended complaint was filed on January

17, 2020, over a year-and-a-half later. Plaintiff has offered no

explanation as to why he did not seek to amend his complaint sooner

to name Dr. Weil as a defendant.

In regard to plaintiff’s claims against the newly added FMC

nurses, the court notes that the second amended complaint dropped

the “FMC Doctors and Staff” as parties. Instead, it included a

claim against Doe Defendant No. 2 at FMC, who allegedly refused to

give him his prescribed medications and substituted a single

Tylenol twice a day. In his third amended complaint filed on July

28, 2020, that claim was expanded into allegations against four FMC

nurses, defendants Salyer, Sylla, Boan, and Livingston. Plaintiff

has provided no explanation as to why he could not have learned the

identities of the nurses sooner by requesting his FMC medical

records in discovery. In fact, the docket includes a summary of

plaintiff’s written notes of his NCI medical records, filed by

plaintiff on July 5, 2019, which includes a reference to nurses

Salyer and Sylla, see Doc. 73-14, yet he did not name these nurses

as defendants until more than a year later. Plaintiff has not met

his burden of showing why he is entitled to equitable tolling of

the statute of limitations on his claims against the FMC nurses.

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See Ruiz-Bueno v. Maxim Healthcare Services, Inc., 659 F. App’x

830, 836 (6th Cir. 2016)(plaintiff inmates not entitled to

equitable tolling of their §1983 claim where they could have

requested jail medical records and used the Ohio procedural device

called an “action in discovery” provided by Ohio Rev. Code §2317.48

to explore the factual basis for their claim and to identify whom

to sue).

Plaintiff’s first amended complaint included the allegation

that after his arrival at NCI, a doctor discontinued his pain

medication. However, Vanessa Sawyer, alleged to be the head of the

medical unit at NCI, was the only NCI defendant named in the

caption of the first amended complaint. No other medical staff

from NCI was named as a defendant until the filing of the second

amended complaint on January 17, 2020, which alleged that Doe No.

4 at NCI refused to provide plaintiff with pain medication. In his

third amended complaint filed on July 28, 2020, plaintiff named Dr.

Richard Clark and Dr. Glenn Elliot, physician administrators at

NCI, as defendants. It is alleged that these defendants have

promulgated rules, regulations, policies and procedures at NCI, and

that they supervise staff and manage operations at NCI. Doc. 117,

¶¶ 3 and 4. The complaint does not allege that either of these

defendants was the doctor who was personally responsible for

denying plaintiff pain medication.

Plaintiff is incarcerated at NCI. As stated above, the record

includes a summary of plaintiff’s NCI medical records prepared from

plaintiff’s notes, which was filed by plaintiff on July 5, 2019.

Doc. 73-14. This document indicates that he had access to his

medical records at NCI. He has provided no evidence showing if or

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when he requested any discovery concerning the NCI medical staff,

or explaining why he could not have learned the identities of these

NCI defendants sooner. Plaintiff has failed to show that he was

diligent in attempting to learn the identities of NCI medical staff

members Dr. Clark and Dr. Elliot.

There is no evidence that Dr. Weil and the ten newly named

defendants had any knowledge of this action before the filing of

the third amended complaint. Plaintiff argues that defendants

would not be prejudiced if the action is allowed to proceed against

them. He contends that because counsel for the State would

represent all of these defendants, the new defendants had

constructive notice of this action. However, the Ohio Attorney

General’s Office represents all state employees. Even assuming

that any of these defendants knew about plaintiff’s action, they

would not necessarily anticipate that they would be named as

defendants. See Doe v. Sullivan County, 956 F.2d 545, 552 (6th

Cir. 1992)(although jail employees could reasonably be expected to

have known about pending action, this alone is insufficient to

impute to them knowledge of their future status as defendants). It

especially would not be reasonable for the newly named four transit

officers from the Belmont Correctional Institution to have

knowledge of an action originally filed against FMC and NCI

employees. Further, the events in this case occurred six years

ago. It is likely that recollections concerning the alleged events

have dimmed. This action has already been pending for four years.

Permitting the action to proceed against Dr. Weil and the newly

named defendants would further delay the resolution of this case

and would prejudice these defendants.

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The court concludes that plaintiff has not shown that his

failure to meet the statue of limitations unavoidably arose from

circumstances beyond his control. He has produced no evidence that

he diligently pursued his rights, nor has he shown that some

extraordinary circumstance stood in his way and prevented his

timely identification of the unnamed defendants. He has produced

no evidence that he relied on any false or misleading

representations made by the State. The court concludes that

plaintiff’s claims against Dr. Weil and the ten defendants newly

added in the third amended complaint are time barred and that

equitable tolling is not warranted.

B. Remaining Grounds for Dismissal

The other grounds for dismissal advanced by defendants are

technically moot in light of the court’s determination that the

claims against them are barred by the statute of limitations. The

court notes that defendants moved to dismiss the complaint against

them due to plaintiff’s failure to perfect service within the time

limits of Rule 4(m). In light of her finding that the statute of

limitations barred the claims against the moving defendants, the

magistrate judge made no recommendation on how the court should

rule on this branch of the motion to dismiss. However, in the

interests of completeness, she addressed the issue and found that

plaintiff failed to show good cause for the lack of service so as

to warrant an extension of the deadline for service. Plaintiff has

objected to this finding, arguing that an extension of time for

service should be permitted. In view of the court’s ruling on the

statute of limitation/equitable tolling issue, the court does not

need to formally decide whether dismissal of the claims against the

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moving defendants is warranted under Rule 4(m). However, the court

would note that it agrees with the conclusion of the magistrate

judge that plaintiff has produced no evidence showing good cause

for the failure to serve the defendants as required under Rule

4(m).

Defendants also moved to dismiss the official capacity claims

against them based on Eleventh Amendment grounds, and further

alleged that the individual capacity claims asserted against them

should be dismissed to the extent that they were based solely on

supervisory liability. Again, in light of the court’s ruling on

the statute of limitations question, it is unnecessary to decide

these branches of defendants’ motion. The court notes that the

magistrate judge discussed these arguments and concluded that the

official capacity claims were barred by the Eleventh Amendment, but

that the individual liability medical indifference claims were not

based on supervisory liability. No objections were asserted in

regard to those findings, and the court agrees with the magistrate

judge on those points.

IV. Conclusion

In accordance with the foregoing, plaintiff’s objections to

the report and recommendation are denied, and the court adopts the

report and recommendation (Doc. 155). The defendants’ motion to

dismiss (Doc. 119) is granted on the ground that the claims against

them are barred by the statute of limitations. The clerk is

directed to dismiss and terminate this action as it pertains to

defendants David Weil, M.D., Richard Clark, M.D., Glenn Frederick

Elliott, M.D., Tamara Sue Salyer, Fat Me Sylla, Theresa Boan,

Chauncy N. Livingston, II, Bryan Kinney, Michael Boehm, Ed Young,

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and Mark Winters.

Date: June 28, 2021 s/James L. Graham

James L. Graham

United States District Judge

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