Norris v. Eargle

• Decision Date: 28 July 2015
• Docket Number: CASE NO. 1:14-cv-00906
• Parties: LARRY NORRIS, pro se, Plaintiff, v. O'DELL EARGLE, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

LARRY NORRIS, pro se, Plaintiff, v. O'DELL EARGLE, et al., Defendants.

CASE NO. 1:14-cv-00906

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION

July 28, 2015

JUDGE DONALD C. NUGENT

MAGISTRATE JUDGE GREG WHITE

REPORT & RECOMMENDATION

I. Procedural Background

On April 25, 2014. Plaintiff Larry Norris (hereinafter "Plaintiff") filed a pro se Complaint purporting to raise "'Bivens' and Federal Tort Claims." (ECF No. 1.) The Complaint names the following parties as Defendants: (1) Mr. Eargle; (2) Mr. Chrissman; (3) Mr. Stewart; (4) Ms. Rannalli; (4) Ms. Giannone; (5) "other BOP employees, unknown;" and, (4) the Federal Bureau of Prisons ("BOP"). Id. Plaintiff alleges five separate counts against Defendants: (1) "cruel and unusual punishment, 8^th Amendment violations;" (2) deliberate indifference stemming from a failure to follow 18 U.S.C. § 4042; (3) violation of employment guidelines for knowingly disregarding employee codes of conduct; (4) obstruction of justice; and (5) intentional infliction of emotional distress. (ECF No. 1 at ¶¶152-161.) Defendants filed a number of motions, including a motion to substitute party, which was previously granted (ECF Nos. 20 & 35); amotion to dismiss Plaintiff's tort claims for lack of subject matter jurisdiction¹ (ECF No. 21); and, a motion to dismiss for failure to state a claim pursuant to Fed R. Civ. R. 12(b)(6). (ECF No. 23.) Plaintiff filed a brief opposing the motions to dismiss (ECF No. 26), to which Defendants replied. (ECF No. 27.) Separately, Plaintiff also filed a motion for equitable tolling (ECF No. 28) and a motion to strike. (ECF No. 29.) Defendants filed briefs in opposition to both. (ECF Nos. 31 & 32.) Finally, Plaintiff filed a motion for appointment of counsel which Defendants also opposed. (ECF Nos. 33 & 34.)

II. Civil Rule 12(b)(6) Standard

A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) "should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Well-pleaded allegations must be taken as true and construed most favorably toward the non-moving party. See, e.g., Mayer v. Mylod, 988 F.2d 635, 637 (6^th Cir. 1993). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions[, as] [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Although a court may not grant a Rule 12(b)(6) motion based on its disbelief of the factual allegations contained in the complaint,Lawler v. Marshall, 898 F.2d 1196, 1199 (6^th Cir. 1990), a court "need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6^th Cir. 1987). "In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must appear 'plausible' on its face, if all of its factual allegations are assumed to be true." Alli v. City of New York, 2012 WL 4887745 (S.D.N.Y. Oct. 12, 2012) (citing Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 560-70). Consequently, a claim should not be dismissed unless it is unsupported by the law or the facts alleged are insufficient.

When ruling on motions to dismiss, a Court should normally look no further than the complaint, but "[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [plaintiff's] claim." Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6^th Cir.1997) (citations omitted).

III. Factual Allegations

The Complaint makes the following factual allegations.² Plaintiff was previously incarcerated at Federal Correctional Institution (FCI) Elkton, but he was confined at FCI Milan at the time he filed the instant Complaint. (ECF No. 1 at ¶2.) While at FCI Elkton, Plaintiff alleges that he was assaulted by Defendant Eargle, a counselor at the prison. (ECF No. 1 at ¶3, 9.) "Plaintiff was at risk of serious harm and injury when Counselor Eargle open handedly [began] striking Plaintiff's body on both sides, chest, and stomach." (ECF No. 1 at ¶9.) Plaintiff alleges that he was assaulted by Defendant Eargle in this same manner a total of three times in ashort span (approximately ten minutes).³ (ECF No. 1 at ¶¶ 9, 12, 26, 55; ECF No. 1-1, Exh. 1.)

Defendant Chrissman, another counselor at FCI Elkton, witnessed a portion of the third assault. (ECF No. 1 at ¶4, 122.) Plaintiff heard Defendant Chrissman tell Defendant Eargle to stop. Id. at ¶122. After Defendant Eargle continued to strike Plaintiff, Plaintiff heard rapid foot steps and saw that Defendant Chrissman had put Defendant Eargle in a "bear hug" and said to Eargle "I'm doing this for your own good." Id. at ¶¶123-124.

Defendant Stewart, whom Plaintiff identifies as a correctional officer, saw and heard the first assault and inquired "What's going on here?" (ECF No. 1 at ¶¶9-10.) Nonetheless, Plaintiff maintains that Defendant Stewart failed to intervene and permitted a second assault to ensue. Id. at ¶¶11-12. Plaintiff is unsure whether Defendant Stewart watched the second assault or left the scene. Id. at ¶¶13, 15, 20. Finally, it is alleged Defendant Stewart never reported the assaults. Id. at ¶47.

Plaintiff avers that it is "highly probable" Defendant Rannalli, who is identified as a correctional officer but referred to as a secretary, witnessed one of the assaults. (ECF No. 1 at ¶¶6, 19, 57, 60.) After the initial assault, Defendant Eargle ordered Plaintiff into a secluded office, and Plaintiff looked at Defendant Rannalli and stated he was afraid to go in. Id. at ¶¶22-25. According to Plaintiff, Defendant Rannalli looked shocked but did not respond and did not intervene. Id. at ¶¶23, 57. Later, Plaintiff alleges that Defendant Rannalli actually saw the assault, but never told Defendant Eargle to stop and did not otherwise intervene. Id. at ¶¶61-64,71, 77-78.

Defendant Giannone is identified as a nurse who provides medical care at FCI Elkton. (ECF No. 1 at ¶7.) The Complaint is devoid of any other specific references to Defendant Giannone. However, Plaintiff did allege that he was seen by the attending nurse, known as "Ms. G" prior to being placed in the Special Housing Unit. Id. at ¶¶146, 148. Plaintiff avers that the medical record falsely states that he was given a "rough pat down," as he denies making such a statement to the attending nurse. Id.

Notably, the Complaint does not allege any physical injuries aside from pain during the alleged assaults and resulting "severe distress." (ECF No. 1 at ¶¶117, 161.) Plaintiff avers that the assaults "could well have exacerbated into a paralizing [sic] stroke or possibly a fatal heart attack." (ECF No. 1 at ¶55.)

IV. Analysis

Defendants advance a number of arguments in support of their motions to dismiss. They contend that (1) Plaintiff's FTCA claims are untimely, (2) Plaintiff's Bivens claims are untimely, (3) Defendants Chrissman and Giannone are entitled to qualified immunity, (4) all Defendants are entitled to qualified immunity with respect to Count Three, (5) no private cause of action exists for obstruction of justice under Count Four, and (6) Plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act ("PLRA"). (ECF Nos. 21 & 23.) As resolution of the statute of limitations issue is dispositive, this report and recommendation focuses on Defendants' first two arguments. In the interests of judicial economy, the Court declines to address Defendants' other arguments.

A. Statute of Limitations

Plaintiff has asserted five causes of action against the Defendants, all stemming from the alleged assault against him by Defendant Eargle. (ECF No. 1.) In this Court's view, all five causes of action, to the extent they are viable, raise either Bivens⁴ claims or violations of the Federal Tort Claims Act ("FTCA"). Defendants assert that applicable statutes of limitations bar both the Bivens and FTCA actions. (ECF Nos. 21-1 at 3-5, 23-1 at 6-7.)

1. Bivens Action

The Sixth Circuit has observed that "an action against a federal officer for violation of a plaintiff's constitutional rights is analogous to 42 U.S.C. §§ 1981 and 1983 actions commenced against a state officer." McSurely v. Hutchison, 823 F.2d 1002, 1005 (6^th Cir. 1987) (citing Butz v. Economou, 438 U.S. 478, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978)); see also Shannon v. Recording Indus. Ass'n of Am., 661 F. Supp. 205, 209 (S.D. Ohio 1987) (finding no basis for distinguishing Bivens actions from § 1983 actions for statute of limitations purposes). "A Bivens action is governed by the same personal injury statute of limitations that applies to a § 1983 action." Sykes v. United States, 507 Fed. App'x. 455, 462 (6^th Cir. 2012) (citing McSurely, 823 F.2d at 1005)). In Ohio cases, the two-year statute of limitations found in Ohio Rev. Code. § 2305.10 applies to Bivens actions. Id. at 462 (citing governs. Browning v. Pendleton, 869 F.2d 989, 990 (6^th Cir. 1989) (en banc)); accord Albiola v. Pugh, 2015 U.S. Dist. LEXIS 54603 at *10(N.D. Ohio, Apr. 27, 2015).

Here, Plaintiff's Bivens claim accrued on the date of the alleged assault, April 11, 2012. "Under the discovery rule, Bivens claims accrue when the plaintiff 'knew or should have known of the injury which is the basis of his Bivens claim.' Friedman v. Estate of Presser, 929 F.2d 1151, 1159 (6^th Cir.1991). Once the plaintiff knows 'he has been hurt and who has inflicted the injury,' the claim accrues. United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)." Estate of Abdullah ex rel. Carswell v. Arena, 601 F. App'x 389, 393 (6^th Cir. 2015). Plaintiff's Complaint was not filed until April 25, 2014. (ECF...