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- NOT RECOMMENDED FOR FULL

- TEXT PUBLICATION

File Name: 16a0503n.06 No. 15

- 3797

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JOHN C. RUIZ

- BUENO, III, et al. , Plaintiffs

- Appellants ,
v. MAXIM HEALTHCARE SERVICES , INC., et al., Defendants

- Appellees

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: DAUGHTREY, MOORE , and SUTTON , Circuit Judges. MARTHA CRAIG DAUGHTREY, Circuit Judge. On September 4, 2011, Edward Peterson, a pretrial detainee , died while he was being held at a Franklin County, Ohio, jail

. On December 8, 2014, t he plaintiffs, the administrator of Peterson’s estate and Peterson’s s on, filed

a 42 U.S.C. § 1983 action against the defendants, various medical

- care providers empl oyed by the Franklin County Sheriff’s Office , alleging state

- law claims of wrongful death, survivorship, and loss of consortium , as well as violations of the Eig hth and Fourteenth Amendments. The district court dismissed the plaintiffs’ lawsuit , concluding that the plaintiffs’ claims were barred by the applicable two

- year statutes of limitations and that the plaintiffs were not entitled to equitable tolling. The plaintiffs now appeal the district court’s dismissal of their lawsuit, arguing that the district court used the incorrect accrual date in calculating whether the limitations period had run and , in the alternative, that the plaintiffs we re entitled to equi table tolling

. We affirm theNo. 15

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- judgment of the district court, concluding that, at the latest, the plaintiffs knew or had reason to know of their claim when they sued a different set of defendants more than two years earlier, in 2012

. We also find, as did the district court, that there is no basis for equitable tolling in this

case . FACTUAL AND PROCEDURAL BACKGROUND After Peter son was arrested on a misdemeanor charge on August 5, 2011, he was held as a pretrial detai nee at the Frankli n County jail, which is operated by the Franklin County Sheriff’s Office. At the time of his arrest, Peterson suffered from mental and physical illnesses, including bipolar disorder, schizoaffective disorder, and congestive heart failure. Although Peters on , before his incarceration, had been taking med ication for his heart condition, he did not receive
any heart medication while he was at the Franklin County jail . On September 4, 2011, Peterson died in jail from an excess of edema fluid caused by congest ive heart failure. 1 On April 6, 2012, the Sheriff’s Office released a redacted copy of an investigative

- report into Peterson’s death, which stated that Peterson’s “immediate cause of death according to the coroner’ s report was an enlarged heart ” and concl uded that “[t]he response to the medical emergency by medical staff and [Franklin County Sherriff’s Office] deputies/supervisors was not consistent with the Regulations, Polices and/or Procedures of the Franklin County Sheriff’s Office.” The report discus sed Peterson’s medical symptoms and care leading up to his death and identified , by name, five of the six nurses that the plaintiffs sued in this action

.
O n September 4, 2012, the plaintiffs filed a 42 U.S.C. § 1983 lawsuit against 53 deputies
at the Sheriff’s Office, alleging Eighth

- Amendment violations and negligent provision of medical care, wrongful death, and loss of consortium under Ohio Law ( the 2012 Action)

. In the

1 The factual circumstances concerning Peterson’s death are fully set forth in Ruiz

- Bueno v. Scott , 639 F. App’x 354, 355

- 57 (6th Cir. 2016).No. 15

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- summer of 2013, t hrough discovery in the 2012 Action , the plaintiffs received a n unredacted copy of the investigative report and Peterson’s jail medica l

- file , which, according to the plaintiffs, revealed the identities of the defendants in this lawsuit. They also learned t hrough a deposition i n December 2013 that a social worker at the jail, Douglas Hahn, had requested medical treatment for Peterson in the days immediately preceding Peterson’s death. On October 16, 2014, the district court awarded summary judgment to the defendants in the 2012 Action, which the plaintiffs appeale d o n November 18, 2014

. 2
On December 8, 2014 , the plaintiffs filed a second law suit ( the 2014 Action) , which is the subject of this appeal. This time, the plaintiffs sued a different set of defendants, all of whom the plaintiffs allege were responsible for providing medical care to Peterson while he was in jail : Maxim HealthCare Services, a private medical care provider employed by Franklin County to provide medical care t o Franklin County inmates, and seven of Maxim’s nurses ( Nurses Maria Sylvestri, Mary C ompton, Brian Bumgardner, Damian Snead, Adam Houston, Gary Hall, and Tara Tallarico); Twin Valley Behavioral HealthCare, a private medical care provider employed by Franklin County to provide mental health services to Franklin County inmates, and two of Tw in Valley’s doctors (Dr s . Delaney Smith and Adam Wooten); and Dr. John Tilley, a privately practicing doctor employed by Franklin County to provide mental health treatment to Franklin County inmates, and Dr. Tilley’s professional corporation, Behavioral Sc ience Specialists, LLC. The plaintiffs also included ten “Jane Doe” defendants in the lawsuit

. In the 2014 Action, the plaintiffs again sued under 42 U.S.C. § 1983 , bringing Eighth

Amendment and Fourteenth

- Amendment claim s for violations of Peterson’s r ight to adequate medical care and three state

- law claims for wrongful death, survivorship, and loss of consortium.

2 We affirmed the district court’s grant of summary judgment in the 2012 Action on February 2, 2016. Ruiz

- Bueno , 639 F. App’x 354.No. 15

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- The defendants moved to dismiss the plaintiffs’ complaint under Federal Rule of Civil Procedure 12(b)(6) on the grounds that the plaintiffs’ suit was barred by the applicable two

- year statute of limitations. The district court agreed and granted the motion to dismiss , concluding that the plaintiffs “knew of and understood Peterson’s injury on September 4, 2012, when they filed a lawsuit for f

ailure to provide adequate medical care,” that their lawsuit accordingly was time

barred , and that the plaintiffs were not entitled to equitable tolling. T he plaintiffs now appeal, challenging those decisions

. DISCUSSION We review the district court’s ruling on a Rule 12(b)(6) motion to dismiss de novo

. In re NM Holdings Co. , 622 F.3d 613, 618 (6th Cir. 2010). In reviewing the Rule 12(b)(6) motion to dismiss, we construe the complaint in the light most favorable to the p laintiff, accept all well

pleaded factual allegations as true, and determine whether the allegations plausibly state a claim for relief. Cataldo v. U.S. Steel Corp. , 676 F.3d 542, 547 (6th Cir. 2012). Although “[ t ] he statute of limitations is an affirmat ive defense, see Fed. R. Civ. P. 8(c), and a plaintiff generally need not plead the lack of affirmative defenses to state a valid claim,” when “the allegations in the complaint affirmatively show that the claim is time

- barred . . . dismissing the claim und er Rule 12(b)(6) is appropriate.” Id. (citing Jones v. Bock , 549 U.S. 199, 215 (2007)). T he district court’s dismissal of an action on the grounds that the plaintiffs’ complaint was filed outside the applicable statute of limitations is subject to a de n ovo standard of review

. Banks v. City of Whitehall , 344 F.3d 550, 553 (6th Cir. 2003); see also Tolbert v. Ohio Dep ’ t of Transp. , 172 F.3d 934, 938 (6th Cir. 1999 )

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- 42 U.S.C. § 1983 c laim The parties agree that the limitations period for the § 1983 claim is two years. See Browning v. Pendleton , 869 F.2d 989, 992 (6th Cir. 1989) ( en banc ). What they dispute is the date on which the limitations period began to run
. Although the limitations period is set by state law, the accrual date of the limitations period

— that is, the date that the limitations period was triggered

— is a question of federal law. Wallace v. Kato , 549 U.S. 384, 388 (2007) ; Sevier v. Turner , 742 F.2d 262, 272 (6th Cir. 1984)

.

“ [ U ] nder federal law, as develop ed in this Circuit, the statute

- of

- limitations period begins to run when the plaintiff knows or has reason to know that the act providing the basis of his or her injury has occurred.” Cooey v. Strickland , 47 9 F.3d 412, 416 (6th Cir. 2007) (internal quotation marks and citation s omitted)

. “ A plaintiff has reason to know of his injury when he should have discovered it through the ex ercise of reasonable diligence.” Sevier , 742 F.2d at 273 ; see also Kuhnle Bros. , Inc. v. County of Geauga , 103 F.3d 516, 520 (6th Cir. 1997)

. “ In determining when the cause of action accrues in § 1983 cases, we look to the event that should have alerted the typical lay person to protect his or her rights. ” Trzebuckowski v. City of Clevel and , 319 F.3d 853, 856 (6th Cir. 2003) ; see also D’Ambrosio v. Marino , 747 F.3d 378, 384 (6th Cir. 2014)

. T he plaintiffs argue that their cause of action did not accrue until they knew that they “ha[d] been hurt and who ... inflicted the injury ” and that the ir claims accordingly were timely because they did not learn the identity of the defendants in the 2014 Action until they received the jail medical

- file in the summer of 2013. See Estate of Abdullah v. Arena , 601 F

. App’x 389, 393 (6th Cir. 2015) (emphasis added) (quoting United States v. Kubrick , 444 U.S. 111, 122 (1979)). However, our precedent provides that “[t]he statute of limitations commences to runNo. 15

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- when the plaintiff knows or has reason to know of the injury which is the basis of his acti on.” Sevier , 742 F.2d at 273 (emphasis added). “[D]iscovery of the injury , not discovery of the other elements of a claim, is what starts the clock.” Rotella v. Wood , 528 U.S. 549, 555 (2000) (emphasis added); see also Dowdy v. Prison Health Servs. , 21 F. App’x 433 , 435 (6th Cir. 2001) (“The statute of limitations is not tolled while a plaintiff attempts to identif y the correct defendants.”). The defendants offer, in total, five events that should have alerted the plaintiffs to their injury : (1) Peterson’s unexpected death in jail on September 4, 2011; (2) Peterson’s autopsy report, which was issued by the Franklin County Coroner’s Office in October 2011, and which indicated that Peterson died from complications due to heart failure; (3) a televised news

- story that reported on the Sheriff’s investigation into the circumstances surrounding Peterson’s death, which aired in the spring or summer of 2012; (4) the Sheriff’s internal

- affairs investigative

report into the circumstances of Peterson’s death, a redacted copy of which was released on April 6, 2012; and (5) the date that the plaintiffs sued the Sheriff’s deputies for Peterson’s in adequate medical

- care while he was in jail , September 4, 2012

. In our view, the release of the internal inve stigative report in April 2012 triggered the limitations period

. The plaintiffs themselves acknow ledged that they “became aware of [] wrongdoing . . . in Spring 2012 when the [Franklin County Sheriff’s Office] published the redacted [internal

- affairs investigative] report.” 3 The redacted report discussed deficiencies at the jail, referenced medical

- care professionals at the jail, and noted that Peterson died because of medical reasons (an enlarged heart). The report, for example, stated that Peterson had “bruising

3 I n their opening brief , the plaintiffs stated, “T he first moment that anyone realized that Mr. Peterson’s passing had anything to do with misconduct was in the spring/summer of 2012, when a news reporting station televised a story abo ut Mr. Peterson and referenced an internal investigation that had been done by the [Franklin County Sheriff’s Office].” Because th e release of the report shortly followed the airing of the television story, the statute

- of

- limitations calculation is basica lly the same for both events.No. 15

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- on his upper left arm” and “swelling to his feet with blistering on his right foot,” referenced “medical staff” and Peterson’s “medical file,” and disclosed the ineffective “code blue medical” response that Peterson received. Even though th e report was redacted, it named five of the six nurses that the plaintiffs sued in this action. The plaintiffs object that these references “indicated no involvement with Mr. Peterson whatsoever.” Although the references to the nurses’ interactions with Peterson were sparse, they should have alerted the plaintiff s to the involvement of medical

- care professionals in Peterson’s care at the jail

. The plaintiffs complain that they “had absolutely no idea, and no information concerning Peterson’s injury as it related to medical care,” that the investigative report “was targeted exclusively at the misconduct of [the Franklin County jail] deputies,” and that the report “mentioned little to nothing about medical personnel, and certainly did not contain any informa tion about what type of medical services were being provided to Mr. Peterson, let alone the identities of the medical providers such as [the defendants].” In particular, the plaintiffs argue that they “did not know that [the Franklin County jail] contract ed out its medical services, let alo ne who those companies were.” These objections fa i l. The relevant inquiry is whe n the plaintiffs, through the exercise of reasonable diligence , sh ould have discovered the injury. Sevier , 742 F.2d at 273. Even though the report did not provide details as to the defendants’ interactions with Peterson, the report should have alerted the plaintiffs as to th eir claim of inadequate medical

- care . The report disclosed, for example, that Peterson had more than 30 pounds of edema fluid at the time of his death and that he died from a heart condition ; that information should have prompted the plaintiffs to investigate the medical services at the jail and the medical care that Peterson received while incarcerated. If the plaintiffs had requestedNo. 15

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- Peterson’s medical records and jail file, they would have uncovered the allegedly in adequate medical

- treatment
. 4 At the very latest, the plaintiffs did discover the injury by September 4, 2012, the date that they filed their lawsuit against the Franklin County Sheriff’s deputies. As the district court held, “it cannot be disputed that Plaintiffs knew of and understood Peterson’s injury on September 4, 2012, when they filed a lawsuit for failure to provide adequate medical ca re. By that point, Plaintiffs knew of the injury Peterson allegedly suffered and retained counsel for the
purpo se of rectifying that injury.” The plaintiffs, however, did not file their complaint against the defendants in this lawsuit until December 8, 2 014, approximately 27 months later. A reasonably diligent plaintiff would have requested the jail file and medical records in the spring of 2012, when the internal investigative

- report was made public, or at the very latest, by September 4, 2012, when the plaintiffs filed their first lawsuit. R egardless of whether their cause of action accrued in May 2012 or by September 4, 2012, the plaintiffs did not file their lawsuit against the defendants here until December 8, 2014, after the two

- year limitations period had expired. Therefore, we affirm the district court’s conclusion that t he plaintiffs’ § 1983 claim is time

- barred. State - law c laims ( w rongful death, survivorship, loss of consortium ) In their motion

- to

- dismiss briefing, the plaintiffs conceded t hat their state

- law claims were subject, at most, to a two

- year statute of limitations, and on appeal, the plaintiffs make no attempt to dispute the two

- year limitations period that the district court applied. Rather, as they did with respect to their § 1 983 claim, the plaintiffs argue that the limitations period was tolled until the plaintiffs ascertained the identities of the defendants. Reasoning that “Ohio courts

4 The plaintiffs acknowledged that they learned the identities of the defendants when they received Peterson’s jail medical

- file through discovery in the 2012 Action. However, t he plaintiffs do not contest that they “could have arguably obtained Mr. Peterson’s medical records at an earlier date.”No. 15

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- apply the same general rules as federal courts regarding the time at which the statute of limitations begins to run,” the district court concluded that the plaintiffs’ state

- law claims were time

- barred for the same reasons that the plaintiffs’ § 1983 claim wa s time

- barred. To the extent the plaintiffs raised state

- law arguments, those arguments are unsuccessful. The plaintiffs contend that under Akers v. Alonzo , 605 N.E.2d 1 (Ohio 1992), their claims do not accrue in circumstances “where th e patient had no way of knowing

... that there had been another physician involved . . . .” 605 N .E.2d at 4. However, Akers is distinguishable from the plaintiffs’ case. Here, the plaintiffs would have known of the involvement of the defendants if the plaintiffs had requested Peterson’s medical records and jail file. And, under Ohio law, a plaintif f “must investigate, and discover,” the identity of an alleged wrongdoer “once [the plaintiff] has reason to believe” that she has been wronged. See Flowers v. Walker , 58 9 N.E.2d 1284, 1288 (Ohio 1992) . We thus affirm the district court’s conclusion that the plaintiffs’ state

law claims also are time

- barred. Equitable Tolling Under the doctrine of equitable tolling, “ the statute of limitations will not bar a claim if the plaintiff, despite diligent efforts, did not discover the injury until after the limi tations period had expired. ” Tapia

- Martinez v. Gonzales , 482 F.3d 417, 422 (6th Cir. 2007) (internal quotation marks and citation s omitted). Equitable tolling, however, “is a rare remedy to be applied in unusual circumstances, not a cure

- all for an entirely common state of affairs.” Wallace , 549 U.S. at 396 . Therefore, “the doctrine of equitable tolling is used sparingly by federal courts,” and “[t]he party seeking equi table tolling bears the burden of proving he is entitled to it.” Robertson v. Simpson , 624 F.3d 781, 784 (6th Cir. 2010)

. “[W] here the facts are undisputed or the district court rules as a matter of law that equitable tolling is unavailable, we apply the de novo standardNo. 15

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- of review to a district court’ s refusal to apply the doctrine of equitable tolling; in all other cases, we apply t he abuse of discretion standard.” Dunlap v. United States , 250 F.3d 1001, 1008 n.2 (6th Cir. 2001) , abrogated on other grou nds by Hall v. Lebanon Corr. Inst. , 662 F.3d 745 (6th Cir. 2011)

. The plaintiffs are not entitled to equitable tolling under either a de novo or an abuse

- of

discretion standard of review. The plaintiffs argue that “there was simply no information available” to them concerning t he wrongdoing of the defendants and that they diligently pursued their claim through discovery in the earlier lawsuit against the Franklin County Sheriff’s deputies

. However, as discussed above, the plaintiffs could have req uested Peterson’s jail file and medical records, and if they had done so, they would have discovered the circumstances giving rise to their claim. The plaintiffs also could have explored the factual basis for their claim (and identified whom to sue) throu gh an Ohio procedural device called an “action for discovery.” See Ohio Rev. Code § 2317.48. The plaintiffs thus did not meet their burden of proving that they were entitled to equitable tolling

. See Baldwin C ty. Welcome C t r. v . Brown , 466 U.S. 147, 151 (1984) (“One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.”)

. Other grounds The defendants also raise alternative grounds for affirming the district court. Because we affirm the district court’s judgme nt on statute

- of

- limitations grounds, we need not address these alternative grounds

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- CONCLUSION T he plaintiffs’ claims are barred by the applicable statute s of limitations, and the plaintiffs are not entitled to equitable tolling. We therefore AFFIRM the district court’s order dismiss ing the plaintiffs’ complaint as untimely.