Rucker v. Lindamood

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

COLUMBIA DIVISION

MORRIS RUCKER, )

)

Plaintiff, ) NO. 1:16-cv-00090

)

v. ) JUDGE CAMPBELL

) MAGISTRATE JUDGE NEWBERN

CHERRY LINDAMOOD., et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Pending before the Court is the second motion for summary judgment (Doc. No. 273) filed

by Defendants Damon Hininger, Amy Franks, and Dr. Yvonne Neau.1 Plaintiff, who is proceeding

pro se, responded to the motion (Doc. Nos. 286, 287), and Defendants filed a Reply (Doc. No.

290). The Magistrate Judge issued a Report and Recommendation recommending the motion for

summary judgment be denied. (Doc. No. 296). Defendants filed Objections to the Report and

Recommendation. (Doc. No. 299).

I. BACKGROUND

The factual and procedural background is thoroughly detailed in the Magistrate Judge’s

Report and Recommendation and neither party objects to the Magistrate Judge’s recitation of the

facts. Accordingly, the Court adopts the background as stated in the Report and Recommendation.

1 The motion now before the Court is Defendants’ second motion for summary judgment. The

Magistrate Judge also recommended denying Defendants’ first motion for summary judgment (Doc. No.

243). (Report and Recommendation, Doc. No. 264). Defendants objected that the Magistrate Judge

“altered” Plaintiff’s claims and that they did not have an adequate opportunity to address all of the

allegations considered by the Magistrate Judge. The Court disagreed that the Report and Recommendation

on the first motion for summary judgment “altered” the claims raised by Plaintiff, but allowed Defendants

to file a second motion for summary judgment to address all of the allegations outlined in the Report. (Doc.

No. 271). The Court denied the first motion for summary judgment without prejudice. (Id.).

(Doc. No. 296 at 2-17). The facts and procedural background are restated here only to the extent

necessary to address Defendants’ objections.

Plaintiff Morris Rucker brings claims under 42 U.S.C. § 1983, alleging violations of his

Eighth Amendment right to adequate health care while he was confined at the South Central

Correctional Facility (“SCCF”), a Tennessee detention facility operated by CoreCivic, Inc.

(“CoreCivic”). Rucker initiated this case in October 2016. The initial complaint included claims

under 42 U.S.C. § 1983 alleging deliberate indifference to his serious medical needs against several

defendants, including Nurse Practitioner Amy Franks and Corizon Medical Services. (Doc. No. 1).

Plaintiff amended or attempted to amend or supplement his complaint more than nine times. (Doc.

Nos. 7, 18, 29, 34, 38, 47, 67, 118, 122, 142). On January 25, 2018, he sought leave to amend the

complaint to name CoreCivic, CoreCivic CEO Damon Hininger, and Dr. Yvonne Neau as

defendants stating that he learned their identities through discovery. (Doc. No. 122). Following

the Magistrate Judge’s order to file a single proposed amended pleading, Rucker filed what is now

the operative complaint. (See Doc. Nos. 150, 160).

The claims in this case arise out of the medical treatment of Rucker while he was

incarcerated at SCCF from approximately December 2015 to February 2018. (Doc. No. 285-1, ¶¶

2, 94). Rucker suffers from chronic obstructive pulmonary disease (COPD) and asthma. (Id., ¶ 15;

Doc. Nos. 243-4, 275, 285-1). He claims Defendants repeatedly discontinued necessary

medication, often substituting less effective, less expensive alternatives, restricted access to

necessary breathing treatments, and took an excessively long time to refill his prescription inhalers,

at times leaving him without any inhalers. (Doc. No. 160).

Rucker alleges Franks disregarded serious risks to his health by discontinuing his

prescription for Advair and instead prescribing a less effective alternative and by issuing an order

restricting his access to breathing treatments. (Id.). Neau, who was CoreCivic’s regional medical

director, was responsible for approving and denying specific medication requests. (Doc. No. 185-

1, ¶¶ 11, 14). Rucker claims Neau disregarded serious risks to his health by repeatedly requiring

and approving less effective medications to treat his COPD and asthma. (Doc. No. 160). Plaintiff

alleges CoreCivic had a policy requiring approval of certain medications and a policy preference

for less expensive medication, and that these policies resulted in SCCF medical providers regularly

discontinuing his prescriptions for Spiriva and Advair and substituting different, less effective, less

expensive alternatives, and, on at least one occasion, caused him to be without inhalers for three

weeks. (Id.).

Defendants moved for summary judgment. They argued that: (1) Rucker failed to

administratively exhaust most of his claims against Hininger, Franks, and Neau; (2) most of his

claims against Hininger and some of his claims against Neau are barred by the statute of

limitations; (3) Franks did not act with deliberate indifference when she prescribed Incruse Ellipta

instead of Advair in April 2016; (4) Franks did not act with deliberate indifference when she

ordered Rucker’s breathing treatments restricted; (5) Neau did not act with deliberate indifference

when she discontinued Rucker’s Advair prescription in contravention of the pulmonary physicians

orders and substituted a less effective alternative; (6) a CoreCivic policy or custom did not lead to

a deprivation of Rucker’s constitutional rights; and (7) Rucker cannot show Defendant’s actions

caused any “detrimental effect to his health.”

The Magistrate Judge thoroughly considered the record evidence and each of the

Defendants’ grounds for summary judgment and recommended Defendants’ motion for summary

judgment be denied as to all claims. (Doc. No. 296). Defendants filed objections to the Report and

Recommendation stating objections to virtually all of the Magistrate Judge’s findings. (Doc. No.

299).

II. STANDARD OF REVIEW

Under 28 U.S.C. § 636(b)(1) and Local Rule 72.03(b)(3), a district court reviews de novo

any portion of a report and recommendation to which a specific objection is made. United States

v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001). General or conclusory objections are insufficient. See

Zimmerman v. Cason, 354 F. App’x 228, 230 (6th Cir. 2009); Lea v. United States Dep’t of Agric.,

2018 WL 721381, at *1 (M.D. Tenn. Feb. 6, 2018) (“A general objection, or one that merely

restates the arguments previously presented, does not sufficiently identify alleged errors on the

part of the magistrate judge.”). Thus, “only those specific objections to the magistrate’s report

made to the district court will be preserved for appellate review.” Id. (quoting Smith v. Detroit

Fed’n of Teachers, 829 F.2d 1370, 1373 (6th Cir. 1987)). Additionally, arguments not raised

before the Magistrate Judge are not properly raised in an objection to a Report and

Recommendation. Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000). In conducting the

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)(C).

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The party bringing the summary judgment motion has the initial burden of informing the

Court of the basis for its motion and identifying portions of the record that demonstrate the absence

of a genuine dispute over material facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).

The moving party may satisfy this burden by presenting affirmative evidence that negates an

element of the non-moving party’s claim or by demonstrating an absence of evidence to support

the nonmoving party’s claims. Id.

In evaluating a motion for summary judgment, the court views the facts in the light most

favorable to the nonmoving party and draws all reasonable inferences in favor of the nonmoving

party. Bible Believers v. Wayne Cty., Mich., 805 F.3d 228, 242 (6th Cir. 2015); Wexler v. White’s

Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003). The Court does not weigh the evidence,

judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986). Rather, the Court determines whether sufficient evidence has been

presented to make the issue of material fact a proper question of fact. Id. The mere scintilla of

evidence in support of the nonmoving party’s position is insufficient to survive summary

judgment; instead, there must be evidence of which the trier of fact could reasonably find for the

nonmoving party. Rodgers 344 F.3d at 595.

III. ANALYSIS

A. Eighth Amendment Claims

“Section 1983 provides a civil enforcement mechanism for all inmates who suffer

constitutional injuries at the hands of ‘[a]ny person acting under color of state law.’” Ford v. Cty.

of Grand Traverse, 535 F.3d 483, 494 (6th Cir. 2008) (citing 42 U.S.C. § 1983). Rucker claims

Franks, Neau, and Hininger were deliberately indifferent to his serious medical needs, which is a

violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. See North v.

Cuyahoga Cty., 754 F. App’x 380, 384-85 (6th Cir. 2018); Farmer v. Brennan, 511 U.S. 825, 834-

35 (1994).

Deliberate indifference has both objective and subjective components, requiring “proof

that the inmate had a sufficiently serious medical need and that a municipal actor knew of and

disregarded an excessive risk to the inmate’s health or safety.” North, 754 F. App’x at 385.

The objective component “requires that the inmate have a sufficiently serious medical need

such that [he or she] is incarcerated under conditions posing a substantial risk of serious harm.”

Id. (citing Ford v. Cty. of Grand Traverse, 535 F.3d 483, 495 (6th Cir. 2008)). A medical need that

has been diagnosed by a physician as “mandating treatment” is a sufficiently serious medical need.

Id.

The subjective component requires that officials had a “sufficiently culpable state of mind”

of “deliberate indifference to inmate health or safety.” Id. (quoting Farmer, 511 U.S. at 834).

Deliberate indifference requires more than negligence, something akin to reckless disregard; but

it does not require proof that the officials intended to cause harm. Id. The plaintiff must “allege

facts which, if true, would show that the official being sued subjectively perceived facts from

which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he

then disregarded the risk.” Id. “The subjective component is designed ‘to prevent the

constitutionalization of medical malpractice claims.’” Winkler v. Madison Cty., 893 F.3d 877, 891

(6th Cir. 2018) (quoting Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014)). To show

deliberate indifference, a plaintiff must allege “more than negligence or the misdiagnosis of an

ailment.” Id. (quoting Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001)). “When a prison

doctor provides treatment, albeit carelessly or inefficaciously, to a prisoner, he has not displayed

a deliberate indifference to the prisoner’s needs, but merely a degree of incompetence which does

not rise to the level of a constitutional violation.” Id.

B. Exhaustion of Administrative Remedies

Under the Prison Litigation Reform Act (“PLRA”), a prisoner may not bring an action

related to prison conditions, including medical care, until he has exhausted available administrative

remedies. Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2016) (citing 42 U.S.C. § 1997e(a)). The

Supreme Court has noted that “to properly exhaust administrative remedies prisoners must

‘complete the administrative review process in accordance with the applicable procedural rules’ –

rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock,

549 U.S. 199, 218 (2007); see also, Woodford v. Ngo, 548 U.S. 81 (2006). The purpose of the

exhaustion requirements is to “allow prison officials a ‘fair opportunity’ to address grievances on

the merits, to correct prison errors that can and should be corrected and to create an administrative

record for those disputes that eventually end up in court.” Reed-Bey v. Pramstaller, 603 F.3d 322,

324 (6th Cir. 2010).

An inmate must make “affirmative efforts to comply with the administrative procedures”

before the Court may consider whether those remedies were unavailable. Napier v. Laurel Cty.,

Ky., 636 F.3d 218, 224 (6th Cir. 2011). When the inmate has done “something” in an effort to

comply with administrative procedures, the Court will consider whether those “efforts to exhaust

were sufficient under the circumstances.” Id.; see also, Wiley v. Ky. Dept. of Corr., No. 19-5368,

2020 WL 12933851, at * 2 (6th Cir. Aug. 25, 2020).

However, an inmate is required only to exhaust “available” administrative remedies. Does

8-10 v. Snyder, 945 F.3d 951, 962 (6th Cir. 2019) (citing Ross v. Blake, 578 U.S. 632, 642 (2016)).

Administrative remedies may be considered “unavailable” if the grievance process operates as a

simple dead end, is so opaque that it becomes, practically speaking, incapable of use, or “when

prison administrators thwart inmates from taking advantage of the grievance process through

machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 644.

Failure to exhaust is an affirmative defense for which defendants bear the burden of proof.

Surles v. Andison, 678 F.3d 452, 455 (6th Cir. 2012). “[S]ummary judgment is appropriate only if

[the defendant] establishes the absence of a ‘genuine dispute as to any material fact’ regarding

non-exhaustion.” Troche v. Crabtree, 814 F.3d 795, 798 (6th Cir. 2016). “Because the Defendants

bear the burden of proof on exhaustion, they bear an ‘initial summary judgment burden [that] is

higher in that [they] must show that the record evidence contains evidence satisfying [their] burden

of persuasion’ and ‘that no reasonable jury would be free to disbelieve it.’” Does 8-10, 945 F.3d

at 961 (citing Surles, 678 F.3d at 455-56) (alteration in original)).

With this framework in mind, the Court considers the claims against the moving

Defendants, beginning with Nurse Franks.

C. Nurse Amy Franks

Rucker asserts a deliberate indifference claim against Franks based on two separate

incidents. First Rucker claims that on April 28, 2016, Franks discontinued his prescription for

Advair and instead prescribed Incruse Ellipta. Second, Rucker claims that although a physician

recommended Rucker be given breathing treatments three times a day as needed, Franks issued an

order limiting his access to breathing treatments.

Franks argues she is entitled to summary judgment on Rucker’s claim because he cannot

show deliberate indifference with regard to either the prescription of Incruse Ellipta instead of

Advair or her instructions regarding breathing treatments. Franks also argues that Rucker failed to

administratively exhaust the claims.

1. Discontinuation of Advair on April 28, 2016

The facts underlying Rucker’s claim arising out of Franks’ discontinuation of Advair are

as follows. On December 22, 2015, shortly after Rucker arrived at SCCF, Franks reviewed

Rucker’s medical history as part of “medical intake screening.” His medical records included a

December 2014 non-formulary medication request by providers at the previous facility requesting

approval for Spiriva and Advair which stated that the provider “tried to keep [him] on formulary

meds but his condition is worsening / no improvement.” (Doc. No. 260-6). Franks then renewed

his prescriptions for “ProAir, Atrovent, Zyrtec, Spiriva, Advair, his rescue inhalers and his

breathing treatment as needed … for 180 days.” (Doc. Nos. 243-4; 243-5 at PageID# 2344 at ¶

15).

SCCF medical providers followed a drug formulary, which is a list of medications that

providers may prescribe without further approval. (Doc. No. 243-4, ¶ 11). Medications not on the

formulary list – i.e., “non-formulary drugs” – required approval by CoreCivic’s regional medical

director, Dr. Yvonne Neau. (Id.). Plaintiff’s prescriptions for Spiriva and Advair were non-

formulary drugs. (Doc. Nos. 243-4, 260-6). It typically took 1-3 days for a prescription to be

filled after the nurse submitted the order to an outside pharmacy. (Doc. No. 243-4, ¶ 9). Requests

for non-formulary medication added one to two days to this timeline. (Id., ¶ 12).

On April 25, 2016, Plaintiff informed SCCF medical staff that he was running out of

Advair. (Doc. No. 243-5, ¶ 18). Plaintiff reported that he had been taking double the prescribed

amount to control his symptoms. (Id.). Franks requested approval to renew Plaintiff’s prescription

for Advair that same day. (Id.). Neau suggested prescribing Incruse Ellipta instead of Advair. (Id.).

Per Neau’s suggestion, Franks ordered Incruse Ellipta on April 28, 2016. (Id., ¶ 20). At the time,

she did not know Incruse Ellipta was a non-formulary drug and did not submit a request for non-

formulary approval. (Id., ¶ 21). Franks states that Incruse Ellipta is prescribed to elevate a COPD

patient’s care when current medication does not sufficiently address the patient’s symptoms. (Id.,

¶ 19). She explains that she had no concerns about switching Rucker’s medication to Incruse

Ellipta to see if it would better manage his COPD. (Id.). On May 2, 2016, Franks learned that

Incruse Ellipta was a non-formulary medication and requested Neau approve the prescription,

which Neau did the same day. (Id. at ¶ 21).

The Magistrate Judge found there were questions of fact regarding whether Franks’

prescription of Incruse Ellipta instead of Advair showed deliberate indifference to Rucker’s serious

medical needs. She noted that Rucker’s medical records showed “that repeated attempts to treat

Rucker with medications other than Advair and Spiriva resulted in Rucker’s condition

deteriorating.” (Doc. No. 296 at 47 (citing Doc. No. 260-6)). She further found that because Franks

initially thought Incruse Ellipta was formulary medication, “a reasonable jury could find that

Franks’s primary reason for changing Rucker’s Advair prescription to Incruse Ellipta was because

she thought it was formulary and that she disregarded a serious risk of harm to Rucker by

prescribing him a less efficacious treatment despite her knowledge of his poor history on other

medications.” (Id.).

Respectfully, the Court disagrees with these findings. First, although Rucker’s medical

records from 2014 indicate that he did not respond well to Alvesco (see Doc. No. 260-6 at PageID#

289-91), there is no evidence that he had previously been prescribed Incruse Ellipta or that it would

be ineffective to treat his condition. Moreover, Franks stated that because Rucker indicated that

Advair was not alleviating his symptoms at the prescribed dose, she had no concerns about

changing Rucker’s prescription to Incruse Ellipta to see if it would more adequately treat his

symptoms.

This case is distinguishable from Darrah v. Krishner, 865 F.3d 361 (6th Cir. 2017). In

Darrah, the defendant discontinued a medication that had been successfully treating the inmate’s

condition and substituted a formulary medication without any medical reason. Id. at 372. Indeed,

the “only apparent basis” for prescribing the formulary medication was that it was listed on the

drug formulary (i.e., less expensive). Id. In addition, the formulary drug prescribed in Darrah was

considered a “drug of last resort” for treating the plaintiff’s condition – the FDA warning label

cautioned that the drug should be used to treat the plaintiff’s condition only when all other

medications have proven ineffective. Id. at 372. In addition, the formulary drug was an

immunosuppressant that required the plaintiff to be monitored for side effects during its use. Id.

On this record, the Darrah court held that a reasonable jury could find that the defendant

disregarded a risk of serious harm by prescribing the less-effective formulary medication.

Here, even if Franks thought Incruse Ellipta was a formulary medication when she initially

requested the prescription, there is no evidence to suggest that she changed the prescription

because it was formulary. Unlike in Darrah where there was no medical reason to change the

plaintiff’s prescription, Franks provided medical justification for the change. Franks stated that

Rucker complained of shortness of breath when he took his medication once a day as prescribed.

Although she initially requested approval for Advair, she had no qualms with Neau’s suggestion

to try Incruse Ellipta to see if it would more adequately treat Rucker’s symptoms. Although Rucker

did not respond well to Incruse Ellipta, unlike in Darrah where the substituted drug was a “drug

of last resort” with known side effects, there is no evidence that Incruse Ellipta is a less effective

or categorically inferior treatment option. On the record before this Court, there is simply no

evidence from which a reasonable jury could conclude that Franks acted with deliberate

indifference when she prescribed Incruse Ellipta in April 2016.

As to the related issue of whether Franks knew Rucker would be without Advair during

the approximately seven days it took for the new prescription to be approved, the Court agrees

with the Magistrate Judge that there are questions of fact. Although Rucker does not dispute that

he told Franks he was running out of Advair, not that he was out, given the length of the delay,

there are questions of fact regarding whether Franks knew Rucker would be without his prescribed

medication during this time. (Doc. No. 285, ¶ 23). Nevertheless, even construing the facts in the

light most favorable to the Plaintiff, no reasonable jury could conclude that Franks acted with

deliberate indifference in failing to fill his prescription more quickly. When Rucker told her that

he was running out of Advair, Franks immediately requested a renewal, and then promptly acted

upon Neau’s suggestion to prescribe Incruse Ellipta instead. (Id., ¶ 24). Unlike the plaintiff in

Darrah, there is no indication Rucker went without any medication for months.

Accordingly, judgment will be granted in favor of Franks on the claim arising out of the

prescription of Incruse Ellipta in April 2016. In light of this determination, the Court need not

address Franks’ argument regarding exhaustion of administrative remedies which pertain only to

this aspect of the claim.

2. Restriction of Breathing Treatments

Franks also objects to the Magistrate Judge’s determination that issues of material fact

concerning whether she acted with deliberate indifference by restricting Rucker’s access to

breathing treatments preclude summary judgment on that aspect of his claim. (Doc. No. 299-1 at

8-9).

Rucker claims Franks’ July 11, 2016 order limiting his breathing treatments to when his

oxygen level went below 94% or he was symptomatic contravened Dr. Freemont’s order that he

be given breathing treatments “three times a day as needed” and was in deliberate disregard to a

serious risk of harm. Franks responds that her instructions did not contravene Dr. Freemont’s order,

but merely set forth when breathing treatments were “needed.” (Doc. No. 274 at 19; Doc. No.

299-1 at 8). She believed providing a breathing treatment when Rucker was not symptomatic or

presenting with low oxygen levels would have been detrimental to his health. (Doc. No. 299-1 at

8-9). Franks specifically objects that, in finding questions of fact on this issue, the Magistrate Judge

relied upon evidence that Dr. Freemont later recommended Rucker be allowed to keep a nebulizer

machine in his cell to more easily take three nebulizer treatments a day. (Id.). She argues that

Freemont’s later order, issued in 2019, has no bearing on whether Franks acted with deliberate

indifference in 2016. (Id.). Finally, she contends that there is no evidence her order interrupted a

course of treatment prescribed by Dr. Freemont because there is no evidence Rucker was denied

breathing treatments when they were medically needed. (Id.).

The Court finds these objections without merit. There are questions of fact regarding

whether Franks disregarded a serious risk of harm to Rucker’s health by limiting his access to

breathing treatments in contravention of Dr. Freemont’s orders and whether a “needed” breathing

treatment was denied based on Franks’s instructions. Construing the evidence in the light most

favorable to the Plaintiff, a breathing treatment was “needed” when Rucker was having trouble

breathing. Dr. Freemont’s subsequent orders are relevant to the question of what he intended when

he ordered breathing treatments “three times a day as needed.” Moreover, in finding questions of

fact precluded summary judgment on this issue, the Magistrate Judge noted that Franks did not

address Rucker’s assertion that Franks told other nurses that he was faking shortness of breath and

using too much medication. (Doc. No. 296 at 50). Franks’ objections to the Report and

Recommendation again ignore this evidence.

3. Exhaustion of Administrative Remedies

Franks also argues she is entitled to judgment because Rucker did not administratively

exhaust his claim that she restricted access to breathing treatments. She argues that Rucker’s

November 10, 2016 grievance cannot be deemed to exhaust claims against her because she is not

identified in the grievance and because the grievance was filed more than seven days after she

issued the order and, therefore, untimely. (Doc. No. 274 at 8; Doc. No. 299-1 at 17).

Rucker filed a grievance November 10, 2016, complaining that Nurse Robinson denied

him a breathing treatment because she said his “oxygen level was to[o] high” according to an

“order” in his medical file. (Doc. No. 260-3 at PageID# 2837-40). In the grievance, Plaintiff stated

that Nurse Robinson would not tell him who wrote the “order” and requested SCCF officials tell

him who wrote the order and what the policy was regarding his breathing treatments. (Id.). A nurse

responded to the grievance stating that Plaintiff’s medical records showed that when he was denied

a breathing treatment his oxygen saturation level was 98% and he was showing no signs of

respiratory distress. (Id.). At each level of review, Plaintiff’s November 16, 2016 grievance was

deemed “inappropriate” because it was the same or similar to another grievance. (Id.).

The Magistrate Judge found Franks failed to carry her burden to show that summary

judgment was warranted on exhaustion grounds because a reasonable jury could conclude that

Franks’ July 28, 2016 order is the order upon which Nurse Robinson relied and that Rucker timely

filed the grievance because it was filed within seven days of the most recent application of Franks’

order. (Doc. No. 296 at 29-30).

Franks’ objections on this issue repeat her arguments made to the Magistrate Judge word

for word. (Compare Doc. No. 274 at 8-9 with Doc. No. 299-1 at 17-18). Although she does not

agree with the Magistrate Judge’s conclusion, Franks does not identify any specific points of error

in the Magistrate Judge’s analysis. Finding no error in the Magistrate Judge’s analysis on this

point, the objections are overruled.

D. Dr. Yvonne Neau

1. Medication Approval and Denial

Rucker alleges Neau disregarded a serious risk to his health by repeatedly requiring and

approving prescription medications that were less effective than Advair and Spiriva, which his

medical records show were recommended by a specialist and were the only medications among

several tried that controlled his condition. He specifically complains that in January 2018, Neau

discontinued his prescription for Advair and Spiriva and prescribed the formulary drug AirDuo

instead.

Neau argues that the facts do not support Rucker’s claim because, when making formulary

and non-formulary decisions, she did not consult his medical records and instead relied solely on

information provided by the provider making the request, and because she repeatedly approved

non-formulary requests and denied formulary requests only two times (both of which she contends

“really should not count”). (Doc. No. 274 at 20; Doc. No. 299-1 at 10-11). Further, Neau argues

that Rucker cannot show deliberate indifference because she was never made aware that Rucker

was not receiving adequate medical care or that “specialist” orders required him to be on any

specific medication, and that there is no evidence that she knew drugs other than Advair and

Spiriva, particularly AirDuo would be ineffective. (Id.).

The Magistrate Judge concluded that a reasonable jury could conclude from the record

evidence that Neau knew that Rucker needed Advair and Spiriva and that other medications had

proven ineffective in treating his condition because she had been informed of this need on at least

six separate occasions. (Doc. No. 296 at 52). The Magistrate Judge also found there were questions

of fact regarding whether Neau prescribed AirDuo (a formulary drug) in place of Advair and

Spiriva (non-formulary drugs) in January 2018 solely because it was on the formulary list,

particularly in the face of evidence that drugs other than Advair and Spiriva did not effectively

treat his condition.

As explained above with regard to the claims against Franks, there is no evidence that

Neau’s recommendation to prescribe Incruse Ellipta instead of Advair in April 2016 was

deliberately indifferent to Rucker’s serious medical needs. (See supra III.C.1.). At that time, it

appeared Rucker’s treatment was not controlling his condition, and Neau stated she recommended

Incruse Ellipta as an attempt to better treat his symptoms. (Doc. No. 243-6, ¶ 9). There is no

evidence that he had previously been prescribed Incruse Ellipta or that it would be ineffective to

treat his condition. Although the evidence shows that SCCF providers repeatedly informed Neau

about Rucker’s need for Advair and Spiriva, in April 2016 they had not yet done so. (See Doc. No.

296 at 52 (citing six times between May 2016 and January 2018 when Neau was informed Rucker

needed Advair and Spiriva)).

However, the record also shows that after Neau was informed Rucker did not do well on

Incruse Ellipta and that he needed Advair and Spiriva, she continued to require and approve

prescription medications that were less effective than Advair and Spiriva, including approving

Incruse Ellipta in January 2017 and substituting a formulary medication for Advair and Spiriva in

January 2018.

Specifically with regard to the prescription of AirDuo in January 2018, Neau argues Rucker

cannot show deliberate indifference because AirDuo is “essentially identical” to Advair. (Doc. No.

299-1 at 11). This argument is not well-taken. First, by referring to AirDuo as “essentially

identical” and “virtually identical” to Advair, Neau effectively concedes that the two prescriptions

are not, in fact, identical. Given the evidence that Neau was aware that medications other than

Advair and Spiriva had not been effective to treat Rucker’s condition, and that she denied the

request for those medications solely because of a preference for formulary medication, the Court

agrees with the Magistrate Judge that there are questions of fact regarding whether she was

deliberately indifferent to Rucker’s serious medical needs by denying approval for Advair and

Spiriva and prescribing AirDuo instead.

Even discounting the initial prescription of Incruse Ellipta in April 2016, the Magistrate

Judge identified ample evidence from which a jury could conclude that Neau was aware that

prescribing medications less effective than Advair and Spiriva presented a serious risk of harm to

Rucker’s health. (See Doc. No. 296 at 53-54). The Court agrees with the Magistrate Judge’s

conclusion that summary judgment is not appropriate on this claim.

2. Exhaustion of Administrative Remedies

Neau also objects to the Magistrate Judge’s determination that there are questions of fact

regarding whether Rucker exhausted administrative remedies as to his claims against her related

to the prescription of Incruse Ellipta in April 2016 and January 2017. In light of the Court’s

determination that the claim regarding the prescription of Incruse Ellipta in April 2016 is not

actionable, the Court does not consider whether Rucker exhausted available administrative

remedies with regard to this claim.

With regard to the January 2017 incident, Rucker filed grievances on February 10, 2017,

and February 24, 2017, complaining that Dietz replaced his Spiriva prescription with Incruse

Ellipta. (Doc. No. 260-3). Neau argues that these grievances are insufficient because neither

mentions her by name or complains about her actions. (Doc. No. 299-1 at 18). But Neau is

undisputedly the person who approved Dietz’s request to prescribe Incruse Ellipta. On this record,

the Magistrate Judge found Neau did not carry her burden to show no genuine issue of material

fact that Rucker failed to exhaust his claims against her. The Court agrees with this determination.

E. Hininger

1. Municipal Policy

Hininger is sued in his official capacity as CoreCivic CEO. Official capacity claims are

treated as claims against the entity of which the officer is an agent. Hafer v. Melo, 502 U.S. 21, 25

(1991). A private entity performing a government function “can be found liable under § 1983 …

where the [entity] itself causes the constitutional violation at issue” through execution of its

policies or customs. City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell v. NYC

Dep’t of Soc. Servs., 436 U.S. 658, 694-95 (1978)). The key inquiry is “whether there is a direct

causal link between a municipal policy or custom and the alleged constitutional deprivation.” Id.

at 386. The plaintiff must “identify the policy, connect the policy to the [municipal entity] itself

and show that the particular injury was incurred because of the execution of that policy.” Graham

ex rel. Est. of Graham v. Cty. of Washtenaw, 358 F.3d 377, 383 (6th Cir. 2004) (quoting Garner

v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)).

The Magistrate Judge found there were issues of fact concerning whether CoreCivic

adopted a policy preference for formulary medications which led to violation of Rucker’s

constitutional rights. This finding was based on the undisputed facts that CoreCivic policy required

advanced approval from the regional medical director to prescribe non-formulary drugs and that

Rucker’s prescriptions for Advair and Spiriva were non-formulary.

The Magistrate Judge also found that there is evidence to support a reasonable jury’s

finding that CoreCivic’s policy preference for formulary medication caused SCCF providers to

interrupt Rucker’s Advair and Spiriva treatments. (Doc. No. 296 at 57). This finding was based on

three separate occasions in which SCCF providers interrupted his treatment with these non-

formulary drugs to prescribe formulary drugs (or what they thought were formulary drugs). (Id. at

57-58). The first instance was in April 2016 when Franks prescribed Incruse Ellipta, thinking it

was a formulary drug. As stated above with regard to the claim against Franks, there is insufficient

evidence from which a jury could conclude that Franks prescribed Incruse Ellipta, which was, in

fact, non-formulary, because of her mistaken belief that it was a formulary drug. (See supra

III.C.1.). Accordingly, the Court will disregard this alleged application of the policy.

The next occurrence considered by the Magistrate Judge was that in February 2017 Nurse

Kelley replaced Advair with the formulary drug Alvesco even though Rucker’s medical records

showed he could not tolerate the drug and it did not help his COPD and asthma. (Id. at 58 (citing

Doc. No. 234-4, 260-6)). Finally, in January 2018, Neau denied approval for Advair and Spiriva

and directed the nurse to prescribe AirDuo, a formulary option, instead. (Doc. No. 296 at 58 (citing

Doc. No. 260-6)). The Magistrate Judge also found sufficient evidence from which a jury could

find that Rucker suffered serious declines in his health on several occasions after SCCF providers

applied CoreCivic’s policy preference for formulary medications to deny and delay his treatment

with Advair and Spiriva. (Id.).

Hininger argues that three instances of conduct are insufficient to create a question of fact

with regard to the existence of a policy. This objection is without merit. Importantly, there are

several ways to show a policy or custom: (1) legislative enactments or official agency policies; (2)

actions taken by officials with final decision-making authority; (3) a policy of inadequate training

or supervision; and (4) a custom of tolerance or acquiescence of federal rights violations. Thomas

v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). Hininger’s arguments address only the

fourth possibility and ignores that the finding of questions of fact with regard to the existence of a

policy is not based solely on these three instances in which Rucker’s medications were substituted.

It is based on the requirement to pre-approve non-formulary medications in the first instance. The

fact that his prescriptions for Advair and/or Spiriva were discontinued on at least two occasions

when doing so was not medically indicated is further evidence of the policy preference for

formulary prescriptions. The Court agrees with the Magistrate Judge’s finding that there are issues

of fact concerning whether CoreCivic adopted a policy preference for formulary medications that

ultimately led to a violation of Rucker’s constitutional rights.

2. Exhaustion of Administrative Remedies

Hininger also objects to the Magistrate Judge’s determination that Rucker exhausted

administrate remedies. Rucker’s January 2018 grievance complained that the “Corporate office

ke[pt] forcing [Rucker] to use medications that are not for COPD and Asthma, to cut the money

costs on the medications.” (Doc. No. 260-3 at PageID# 2857). Hininger argues this does not

adequately grieve the claims asserted here, which he asserts are specifically about a delay in

receiving his medication, not provision of ineffective medication.

The Magistrate Judge found that Plaintiff’s January 2018 grievance exhausted claims that

Rucker “did not receive Advair and Spiriva (delaying effective treatment) because the “Corporate

Office,” through Neau, kept prescribing other medications to cut costs (a policy preference for

particular medications).” (Doc. No. 296 at 25). “In other words, when Rucker was denied daily

use of Advair and Spiriva because Neau did not renew his prescriptions based upon that policy,

effective treatment of his COPD and asthma was necessarily delayed.” (Id.).

As an initial matter, the Court notes that Hininger’s objection does not address the

Magistrate Judge’s analysis. Instead, it merely restates word for word the argument presented in

the summary judgment brief. (Compare Doc. No. 274 at 9-10 with Doc. No. 299-1 at 19).

Therefore, the Court need not consider the objection. See VanDiver v. Martin, 304 F. Supp. 2d

934, 937 (E.D. Mich. 2004) (“A general objection, or one that merely restates the arguments

previously presented is not sufficient to alert the court to alleged errors on the part of the magistrate

judge.”); Lea v. United States Dep’t of Agric., 2018 WL 721381, at *1 (M.D. Tenn. Feb. 6, 2018)

(same).

In any event, the attempt to draw a fine line between allegations of a delay in effective

treatment because policy required approval for certain medications and denial of effective

treatment because policy required approval for certain medications and that approval was denied,

is not well taken. The grievance provides adequate notice of Rucker’s complaint concerning the

policy preference for formulary medications, which he alleges resulted in denial of effective

treatment for his condition. Defendants’ objection is essentially one of semantics and is overruled.

F. Proof of Injury

Defendants object that the Magistrate Judge improperly found that Plaintiff need not show

an injury to allege a constitutional violation. (Doc. No. 299-1 at 14). Defendants contend that to

prevail on a claim regarding an alleged delay in treatment, Plaintiff must place verifying medical

evidence in the record that establishes the detrimental effect of the delay. (Id. (citing Napier v.

Madison Cty., Ky., 238 F.3d 739, 742 (6th Cir. 2001) and Dozier v. Pauley, 24 F. App’x 398 (6th

Cir. 2000))).

Defendants claim of error is unpersuasive. The Sixth Circuit has held that an inmate may

state a claim based on delay in treatment even when there is no detrimental effect. Blackmore v.

Kalamazoo Cty., 390 F.3d 890, 899 (6th Cir. 2004). This is because “the test for deliberate

indifference is whether there exists a ‘substantial risk of serious harm’ and does not require actual

harm to be suffered.” Id. (citing Farmer, 511 U.S. at 837) (emphasis in original). The Blackman

court explained that a claim concerning delay in treatment may be premised on the detrimental

effect of the delay, but may also be premised on the theory that “the delay alone in providing

medical care creates a substantial risk of serious harm.” Id. Rucker has submitted evidence in

support of both theories.

G. Statute of Limitations

Hininger and Neau argue that claims against them based on conduct that occurred before

January 25, 2017, are barred by the one-year statute of limitations.2 (Doc. No. 274 at 12-15).

Hininger contends all of the claims against him are untimely. (Id. at 13). Neau concedes the claims

related to conduct in January 2018 were filed within the limitations period, but argues “claims

against her for alleged incidents that occurred in April 2016 and January 2017 … are clearly

untimely.” (Id. at 15).

In Tennessee, actions brought under 42 U.S.C. § 1983, must be brought within one year.

See Edison v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007) (citing Tenn.

Code Ann. § 28-3-104). The limitations period generally begins to run when a plaintiff knows or

has reason to know of the injury which is the basis for his action. Id. at 635. As applicable here,

the statute of limitations is tolled by the filing of a proposed amended complaint to add defendants

accompanied by a motion for leave to amend. See e.g., Shillman v. United States, 221 F.3d 1336,

2000 WL 923761 (6th Cir. 2000) (Table); United States v. Katz, 494 F. Supp. 2d 641, 644 (S.D.

Ohio 2006). In addition, for claims subject to the PLRA’s administrative exhaustion requirement,

2 In the Motion for Summary Judgment (Doc. No. 274), Defendants assert that claims are barred to

the extent they arose more than one year before June 25, 2018, the date Rucker filed the Amended

Complaint naming Hininger and Neau as parties. However, their Objections appear to concede that the

correct date is no later than January 25, 2018, which is the date Rucker mailed the motion for leave to

amend and proposed amended complaint adding Hininger and Neau as defendants. (See Doc. No. 299-1).

the statute of limitations is tolled while the litigant exhausts his administrative remedies. See Surles

v. Andison, 678 F.3d 452, 458 (6th Cir. 2012).

The statute of limitations is an affirmative defense for which defendants bear the burden of

proof. Surles, 678 F.3d at 458. To prevail on this affirmative defense, defendants must show that

the statute of limitations has run and that there is no genuine dispute of material fact as to when

the plaintiff’s cause of action accrued. Campbell v. Grand Trunk W. R.R. Co., 238 F.3d 772, 775

(6th Cir. 2001).

The Magistrate Judge recommended the Court find Defendants failed to carry their burden

to show no genuine issue of material fact that the statute of limitations has run or as to when

Plaintiff’s claims accrued and deny Defendants’ motion for summary judgment on statute of

limitations grounds. (Doc. No. 296 at 33, 42). The Magistrate Judge considered three separate

reasons under which the statute of limitations would not bar Plaintiff’s claims arising out of injuries

that incurred more than one year prior to the filing of the Amended Complaint – relation back

under Federal Rule of Civil Procedure 15(c), the continuing violations doctrine, and tolling.

1. Claims against Hininger

Hininger argues the claims against CoreCivic are time-barred because the only allegation

against CoreCivic in the Amended Complaint relates to conduct in July 2016 when Rucker alleges

he was told it would “take up to 3 weeks [for his prescriptions to be filled] because CoreCivic

Corporate Office had to approve to pay the cost for the refills.” (See Doc. No. 274 at 13 (citing

Doc. No. 160, ¶¶ 14-15)).

As an initial matter, the Court disagrees that Rucker’s claims against CoreCivic are limited

to the single allegation of delay in July 2016. Rucker also brings claims against CoreCivic based

on the repeated denial and/or delay of his prescription medication due to the CoreCivic policy

requiring additional approval for certain medications and a policy preference for formulary

medications. It is true, this claim is not artfully pleaded. However, pro se filings are to be liberally

construed, and a pro se complaint, however inartfully pleaded, is held to a less stringent standard

that a formal pleading drafted by lawyers. Spotts v. United States, 429 F.3d 248, 250 (6th Cir.

2005); Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999). The Amended Complaint specifically

references the grievance filed against CoreCivic and Neau on January 15, 2018, “on the grounds

of deliberate indifference to Plaintiff’s serious medical needs, because Plaintiff’s ‘Advair and

Spiriva inhalers [were] discontinued by Dr. Neau CoreCivic Corporate Doctor.’” (Compl., Doc.

No. 160, ¶ 22). Though this allegation is not explained at length in the Amended Complaint, the

January 15, 2018 Grievance, which is incorporated by reference, more clearly explains that Rucker

complains that “Dr. Neau have changed my medications six (6) times within the last year, placing

my life in danger; All because Corporate Office keep forcing me to use medications that are not

for COPD and Asthma, to cut the money costs on the medications.” (See Doc. No. 160-3). The

grievance explains that the latest medication change was on January 14, 2018. (Id.). Accordingly,

Plaintiff’s claims against CoreCivic extend through at least January 2018. Even by the least

generous of Defendant’s proposed dates, June 25, 2018, his claims are not entirely barred by the

one-year statute of limitations.

Rucker argues that even claims arising out of events that took place before January 25,

2017 – one year before he sought leave to amend to add Hininger and CoreCivic as defendants –

are not time-barred because they relate back to the date of his original complaint under Federal

Rule of Civil Procedure 15(c) and/or they are timely under the continuing violation doctrine.

2. Relation Back Under Rule 15(c)

Hininger and Neau argue that the claims asserted in the Amended Complaint do not relate

back to the original complaint under Federal Rule of Civil Procedure 15(c). Rule 15(c)(1) provides

that an amendment relates back to the date of the original pleadings when:

(A) the law that provides the applicable statute of limitations allows

relations back;

(B) the amendment asserts a claim or defense that arose out of the conduct

transaction, or occurrence set out—or attempted to be set out—in the

original pleading; or

(C) the amendment changes the party or the naming of the party against

whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within

the period provided by Rule 4(m) for serving the summons and

complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in

defending on the merits; and

(ii) knew or should have known that the action would have been

brought against it, but for a mistake concerning the proper party’s

identity.

Fed. R. Civ. P. 15(c)(1).

The Magistrate Judge found that Hininger did not show the absence of a genuine issue of

material fact that Plaintiff’s claim relates back to the date of the original complaint. The Magistrate

Judge considered that Plaintiff originally identified Corizon as a defendant and misidentified the

alleged policy as a Corizon policy. (Doc. No. 296 at 36 (citing Doc. No. 3, PageID#52)). Likewise,

Plaintiff mistakenly stated that Corizon was responsible for the approval and denial of his

medications. Plaintiff proceeded with the case under these mistaken beliefs until he learned

through discovery that the policy was not attributable to Corizon, but to CoreCivic, and the

approval and disapproval were not attributable to Corizon, but to Neau. (Id. at 36 (citing Doc. No.

92 at PageID# 940, 941, 943; Doc. No. 118 at PageID# 1213)). Plaintiff thereafter moved to amend

his complaint to name CoreCivic, Hininger, and Neau as defendants instead of Corizon. (Doc.

Nos. 122, 122-1).

The Magistrate Judge found that this is precisely the circumstance described in Krupski v.

Costa Crociere S.p.A., 560 U.S. 538, 549 (2010), in which the Supreme Court found that a

“mistake concerning the proper party’s identity” extends to a misunderstanding of the roles of the

parties in the “conduct, transaction, or occurrence” giving rise to the claim. Under these

circumstances, the Supreme Court explained, “the only question under Rule 15(c)(1)(C)(ii), then,

is whether party knew or should have known that, absent some mistake, the action would have

been brought against him.” Id.

CoreCivic, Hininger, and Neau have not argued that they did not have notice of the action

and would be prejudiced in defending against it. Nor do they claim they could not have known and

did not know that the claim arising out delays and denials relating to the approval process for

Plaintiff’s medication would have been brought against them, rather than Corizon, but for

Plaintiff’s mistake. The Magistrate Judge, therefore, found that they have not shown the absence

of a genuine issue of material fact that Plaintiff’s claims relate back to his original complaint. (Doc.

No. 296 at 38, 43).

In objections to the Report and Recommendation, Defendants cite Marlowe v. Fisher Body,

489 F.2d 1057, 1064 (6th Cir. 1973), for the proposition that “when a plaintiff did not make a

‘mistake’ in naming a wrong party but seeks to add a new party, such an amendment creates a new

cause of action and there is no relation back to the original filing for purposes of limitations.” The

Court is unpersuaded that Marlowe governs. Not only has Rule 15 been amended several times

since the Marlowe decision, the case also pre-dates the Supreme Court’s opinion in Krupski by

more than thirty-five years.

Defendants also relies upon Asher v. Unarco Material Handling, Inc., 596 F.3d 313, 318-

19 (6th Cir. 2010). Though Asher is less aged than Marlowe, it still predates Krupski, if only by a

few months. In any event, Asher has no bearing on whether the claims of a Plaintiff who has made

a mistake concerning the proper party’s identity will relate back to an earlier pleading that

mistakenly named a different party. In Asher, the plaintiffs sought to amend the complaint to add

thirty-three additional plaintiffs whose claims were otherwise barred by the statute of limitations.

Id. at 316. The court held the claims by these new plaintiffs did not relate back to the original

complaint filed by different plaintiffs where the new plaintiffs were neither substituted nor showed

a mistake concerning identity. Id. at 319-20.

At no point do Defendants contend that the Magistrate Judge’s application of Krupski was

in error or contend that the provision of the rule allowing relation back were there has been a

mistake concerning the proper party’s identity is inapplicable. In light of the foregoing, Defendants

have not shown an absence of dispute of material fact that Rucker’s claims relate back to the

original complaint.

3. Continuing Violation

“Under the continuing violation doctrine, the court can consider as timely all relevant

violations ‘including those that would otherwise be time[-]barred’.” Nat’l Parks Convervation

Ass’n, Inc. v. Tenn. Valley Auth., 480 F.3d 410, 416 (6th Cir. 2007) (quoting Sharpe v. Cureton,

319 F.3d 259, 267 (6th Cir. 2003), cert. denied, 540 U.S. 876 (2003)). The Sixth Circuit recognizes

two categories of continuing violations: (1) “those alleging serial violations” and (2) “those

identified with a longstanding and demonstrable policy of discrimination.” Norman v. Granson,

2020 WL 3240900, at * 2 (6th Cir. Mar. 25, 2020) (quoting Sharpe v. Cureton, 319 F.3d 259, 266

(6th Cir. 2003)). “A continuing violation ‘is occasioned by continual unlawful actions, not

continual ill effects from an original violation.’” Bruce v. Correctional Med. Svcs., 389 F. App’x

462, 466 (6th Cir. 2010). Although the continuing violation doctrine most frequently applies in the

context of Title VII discrimination claims, the Sixth Circuit has held that the doctrine may extend

into the Section 1983 context for violations “identified with a longstanding and demonstrable

policy of discrimination.” Sharpe, 319 F.3d at 266-67.

Unlike continuing violations, “discrete acts” are not actionable if time barred “even when

they are related to acts alleged in timely filed charges.” Nat’l Parks Consvervation Ass’n., 480

F.3d at 416 (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). Explaining

the distinction between discrete and continuing acts, the Sixth Circuit has explained, “[a]

continuing violation occurs over several incidents that are not themselves actionable; conversely

discrete events that are easily identifiable and separately actionable do not constitute a continuing

violation.” Norman, 2020 WL 3240900, at *2 (citing Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 114-115 (2002)).

Defendants argue the continuing violation doctrine typically does not apply to Eighth

Amendment claims because the denial of medical care represents discrete unlawful acts, each of

which triggers the statute of limitations anew. (Doc. No. 274 at 14 and Doc. No. 299-1 at 24 (citing

Bruce v. Correctional Medical Servs., Inc., 389 F. App’x 462 (6th Cir. 2010))). In Bruce, the court

found the continuing violation theory inapplicable to plaintiffs claims that defendants denied

necessary surgery for approximately five years. Id. at 463. However, although the continuing

violation theory did not reach defendants’ conduct outside the limitations period, claims related to

discrete unlawful action within the limitations period were not barred. Id. at 467. Therefore, if

Bruce had been denied surgery through discrete actions within the limitations period, claims

arising out of these denials would not be time-barred. Id. (noting that “passive inaction” would not

suffice).

Here, Rucker alleges discrete instances of inadequate medical care to which the continuing

violation theory is not applicable. However, as stated above and specifically identified by the

Magistrate Judge, he has alleged numerous discrete acts within the limitations period. (See Doc.

No. 296 at 33 (noting that CoreCivic’s non-formulary prescription approval process was applied

to Rucker several times after July 2016, including in February 2017, March 2017, July 2017, and

January 2018)). Therefore, even if the allegations in the Amended Complaint do not relate back

under Rule 15(c), which Defendants have not established, Plaintiff nevertheless has stated valid

claims within the limitations period with regard to subsequent denials of appropriate medication.3

4. Tolling

The Magistrate Judge held that the statute of limitation did not bar Plaintiff’s claims against

Hininger because claims subject to the PLRA’s administrative exhaustion requirement do not

begin to run “until after the litigant exhausts his administrative remedies.” (Doc. No. 296 at 33

(citing Surles v. Andison, 678 F.3d 452, 458 (6th Cir. 2012), and Brown v. Morgan, 209 F.3d 595,

596 (6th Cir. 2000)). The Magistrate Judge concluded that a reasonable jury could find that

Plaintiff’s official capacity claim against Hininger accrued on March 23, 2018, the date his January

15, 2018 grievance became final. (Id.).

Defendants complain that the Magistrate Judge incorrectly stated that the statute of

limitation does not begin to run until after the litigant exhausts his administrative remedies, when

the law is that the statute of limitations is tolled while a litigant exhausts administrative remedies.

3 The Court notes that even if claims arising out of conduct outside the limitations period are

untimely, these earlier incidents are nevertheless relevant to show the existence of CoreCivic policy or

custom.

(Doc. No. 299-1 at 23). Defendants are correct, but the wording error is inconsequential here where

the tolling period is arguably only a matter of months (January 15, 2018 to March 23, 2018) and

Defendants do not dispute that, even without considering tolling, claims that accrued after January

25, 2017, are timely.4

Does tolling alone save Plaintiff’s claims arising out of conduct in 2016? Perhaps not. But

to be entitled to summary judgment on these grounds, Defendants must show there are no disputes

of material fact regarding the amount of time that should be tolled while Rucker was exhausting

or attempting to exhaust his administrative remedies. Surles, 678 F.3d at 458. While conceding

that the statute of limitations should be tolled while Plaintiff exhausts administrative remedies,

Defendants have not pointed to evidence to show the absence of a genuine dispute of fact as to

how much time should be tolled, particularly in light of Plaintiff’s many grievances addressing

issues with his medication. Moreover, as discussed above, Plaintiff has alleged a number of

discrete actions within the limitations period and his claims against CoreCivic and Neau may relate

back to the filing of the original complaint in October 2016 under Fed. R. Civ. P. 15(c). For all of

these reasons, summary judgment on statute of limitations grounds is not appropriate.

IV. CONCLUSION

Having conducted a de novo review of the Magistrate Judge’s determinations and the

Defendants’ objections, for the reasons stated herein, the Court concludes the Defendants

objections with regard to the portion of the claim arising out of the prescription of Incruse Ellipta

in April 2016 are well-taken, as are the objections to the recommendation regarding the application

4 Neau does not specifically address tolling at all. Her assertion that claims arising out of alleged

incidents that occurred prior to January 25, 2017, are untimely, does not account for tolling of these claims

while the grievance process played out. Application of tolling to the claims based on occurrences in January

2017, even those arising out of alleged incidents taking place before January 25, 2017, would almost

certainly render those claims timely.

of the continuing violation doctrine and, to some extent, tolling. The remaining objections are

overruled. Accordingly, the Report and Recommendation is ADOPTED and APPROVED with

the modifications stated herein, and Defendants’ Second Motion for Summary Judgment (Doc.

No. 273) is GRANTED in part, and DENIED in part.

It is so ORDERED.

WILLIAM L. CAMPBELI J M,

UNITED STATES DISTRICT JUDGE

31