United States District Court, D. Montana, Helena Division
RICHARD E. SHREVES, Plaintiff,
DR. SCOTT PIRANIAN, TRISTON KOHUT, LAUREL ANDRECHAK, SPECTRUM MEDICAL INC., MIKE FERRITER, MIKE BATISTA, MEAGEN BOURNE, C. MCGUIRE, DANIEL TROUPE, DAN CHLADEK, KRISTY BOESE, BILL MILLER, LIZ RANTZ, HEIDI ABBOTT, CATHY REDFERN, and CINDY HINER, Defendants.
DANA L. CHRISTENSEN, Chief District Judge.
United States Magistrate Judge Keith Strong entered his findings and recommendations in this case on December 8, 2014, recommending dismissal of Plaintiff Richard E. Shrives' ("Shreves") claims as either barred by the applicable statute of limitations or for failing to state a claim. Shreves filed objections to the findings and recommendations on December 29, 2014, seven days later than allowed by statute. Nevertheless, the Court will construe Shreves' objections as timely and conduct a de nova review of the record. 28 U.S.C. § 636(b)(l). The portions of the findings and recommendations not specifically objected to will be reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). "Where a [party's] objections constitute perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original habeas petition, the applicable portions of the findings and recommendations will be reviewed for clear error." Rosling v. Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014) (citations omitted). For the reasons stated below, Judge Strong's findings and recommendations are adopted in full.
Judge Strong found that Shreves' claims arising prior to July 24, 2011 were barred by the statute of limitations, and that Shreves failed to state a claim upon which relief may be granted in his remaining claims. Given the abundance of material submitted with his Complaint, Objections, and subsequently filed Notices, it is clear the defects cannot be cured by the allegation of additional facts. The Court agrees with Judge Strong that this matter should be dismissed.
Shreves objects to Judge Strong's findings regarding (1) certain factual allegations not acknowledged; (2) the dismissal of his claims barred by the statute of limitations; and (3) his state law claims being dismissed.
Shreves objects to Judge Strong's recitation of the factual allegations, claiming "[t]he omitted facts leave out key circumstances of Shreves' claim." (Doc. 13 at 21.) Shreves requests that the Court consider the following: an alleged failure to follow-up by Dr. Piranian (Doc. 13 at 22.); Shreves' complaint that "the new anomalies from the 12-3-13 x-rays are now congenital or were overlooked in the 7-14-11 x-rays" (Doc. 13 at 23-24.); Shreves' complaint of back pain on June 15, 2012 (Doc. 13 at 24.); Dr. Kohut's alleged failure to inform Shreves of the possible side effects of the medication Reglan (Doc. 13 at 25-26.); Dr. Piranian allegedly ignored Shreves' request to be seen in November of 2013 (Doc. 13 at 26.); Dr. Kohut allegedly did not process a medical report and labeled Shreves' pain as "Chronic" (Doc. 13 at 27-28.); Shreves' "possibly incarcerated hernia and ongoing abdominal pain" (Doc. 13 at 28.); Shreves disagreement with Dr. Piranan's labeling any future treatment as elective (Doc. 13 at 29); an alleged failure to note Shreves' "inmate status determining care" (Doc. 13 at 30.).; weightlifting encouraged (Id. ); "[t]he magistrate mentions nothing about [Defendants] Hiner and Redfern; Shreves would like to replead the allegations against them (Id. ); and a December 18, 2014 appointment with Dr. Kohut (Doc. 13 at 31.) The Court will consider these facts in its analysis.
Statute of Limitations
Judge Strong found Shreves' claims arising prior to July 14, 2011 against Defendants Miller, Andrechak, Troupe, and Chladek are barred by the applicable three-year statute of limitations governing personal injury actions in Montana. Shreves objects to the dismissal of all but Defendant Chladek.
Shreves' objects to the dismissal of Sgt. Miller, stating that because he initiated mandatory prison grievance procedures on June 4, 2011, the limitations period was tolled until that grievance process was fully exhausted on September 9, 2011. (Doc. 13 at 9.) Shreves claims this exhaustion requirement extended the period to timely plead his claims from July 24, 2014, as found by Judge Strong, to September 9, 2014, and includes the allegations against Sgt. Miller on June 4, 2011. (Doc. 13 at 8-9; citing Brown v. Va/off, 422 F.3d 926, 942-943 (9th Cir. 2005) (the mandatory exhaustion requirement of the Prisoner Litigation Reform Act ("PLRA") "tolls the 3 year limitation period.")) Shreves "replead[s his] claim against Sgt. Bill Miller" in his objections. (Doc. 13 at 9.) Shreves alleges that Sgt. Miller "interferred (sic) with a prescribed treatment plan when he refused to allow Shreves to go to the infirmary on 6-4-11 per plan and after Shreves described severe pain." (Id. )
Shreves is correct that the exhaustion requirement of the PLRA can toll the limitations period. However, Shreves fails to allege facts establishing that Sgt. Miller was aware of the pre-existing treatment plan. Thus, the allegation that he interfered with that plan fails to state a claim, even if it is not barred by the statute of limitations. Shreves' remaining allegations regarding the "hold-in[s]" on June 23, 2011 and July 5, 2011, and Sgt. Miller's alleged retaliation were not appropriately grieved through the prisonand accordingly are barred by the statute of limitations.
II. Andrechak and Troupe
Shreves objects to Judge Strong's recommendations regarding Defendants Andrechak and Troupe based on these and other Defendants' "complete control of all information, the actions taken to conceal the injury from Shreves, plus the labeling of Chronic pain' without any objective medical findings." (Doc. 13 at 15.) Shreves alleges officials at Montana State Prison "fraudulently concealed the existence of the cause of action so that plaintiff... did not learn of its existence." (Doc. 13 at 15; quoting Hennegan v. Pacifico Creative Serv. Inc., 787 F.2d 1299, 1302 (9th Cir. 1986)). Because of this, Shreves contends his claims against Defendants Andrechak and Troupe are not barred by the statute of limitations.
The objections on this point are conclusory and not supported by the record. There is no evidence to suggest prison staff fraudulently concealed the nature of Shreves' back injury or that the injury was self-concealing. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although required to take all of the factual allegations in the ...