IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Gary D. Wilder, :

 Plaintiff, :

 v. : Case No. 2:12-cv-0064

Terry Collins, et al., : JUDGE JAMES L. GRAHAM

 Magistrate Judge Kemp

Defendants. :

REPORT AND RECOMMENDATION

Gary D. Wilder, a state prisoner, brought this action under

42 U.S.C. §1983 against various prison officials who, he claims,

violated his constitutional rights with respect to medical care. 

The complaint also asserts state law claims against persons who

are not employees or agents of any state or local governmental

entity. The case is before the Court for the initial screening

required by 28 U.S.C. §1915A. For the following reasons, it will

be recommended that the case be dismissed as barred by the

applicable two-year statute of limitations, and for other reasons

as well.

I.

28 U.S.C. §1915A requires the Court to screen any prisoner

case in which redress is sought from “a governmental entity or

officer or employee of a governmental entity.” If the Court

finds that the complaint is frivolous, malicious, or fails to

state a claim upon which relief can be granted, the Court is

required to dismiss the complaint without ordering that it be

served on the defendants. This applies even when, as here, the

full filing fee has been paid. “A district court is required to

screen all civil cases brought by prisoners, regardless of

whether the inmate paid the full filing fee, is a pauper, is pro

se, or is represented by counsel as the statute does not

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differentiate between various civil actions brought by

prisoners.” McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir.

1997).

II.

Mr. Wilder’s complaint, fairly summarized, alleges the

following facts. While a prisoner at the Chillicothe

Correctional Institution, Mr. Wilder developed severe leg pain. 

He was seen by the institution doctor who diagnosed back

problems, prescribed medication, and placed Mr. Wilder on

“medical idle.” A second doctor later took x-rays and concluded

that there was nothing wrong with Mr. Wilder’s leg. The pain

continued and Mr. Wilder reported to the prison hospital but was

turned away based on the doctors’ belief that nothing was wrong

with him. 

He grieved these events and was told that nothing would be

done for him. Eventually, however, he was transported to the

Corrections Medical Center and given an ultrasound test, which

revealed blood clots in his leg. While being transported to the

Ohio State University Medical Center, the clots turned into an

aneurysm. A bypass operation was done, apparently not

successfully, and ultimately Mr. Wilder’s leg was amputated above

the knee. He was finally returned to prison on or about May 1,

2008.

Mr. Wilder consulted an attorney, David Washington, about

filing suit over these events. Mr. Washington turned the case

down. Other attorneys then refused to take the case because the

statute of limitations on medical malpractice claims had expired. 

He claims the actions of the various defendants violated his

Eighth and Fourteenth Amendment rights to be free from cruel and

unusual punishment and his First Amendment right of access to the

courts. 

III.

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Mr. Wilder is attempting to assert constitutional claims

against the defendants, which claims are made actionable by 42

U.S.C. §1983. The statute of limitations applicable to claims

arising under 42 U.S.C. §1983 is the two-year statute of

limitations found in Ohio Revised Code §2305.10. Browning v.

Pendleton, 869 F.2d 989 (6th Cir. 1989). Although the statute of

limitations is normally an affirmative defense that must be

raised by defendants in an answer, if the limitations bar appears

on the face of the complaint, the Court may apply it during the

initial screening process. See, e.g., Watson v. Wayne County, 90 

Fed. Appx. 814, *1 (6th Cir. January 26, 2004) (“If a statute of

limitations defense clearly appears on the face of a pleading,

the district court can raise the issue sua sponte”), citing Pino

v. Ryan, 49 F.3d 51, 53-54 (2d Cir. 1995). This Court has

applied that rule in cases brought by prisoners and screened

under §1915A. See, e.g., Smith v. Warren County Sheriff’s Dept.,

2010 WL 761894 (S.D. Ohio March 2, 2010). Thus, the Court must

look to the allegations in the complaint to determine whether the

action has been filed within the applicable two-year period.

Here, although the complaint makes one isolated reference to

the events about which Mr. Wilder complains having occurred in

“April, 2011,” this is clearly a typographical error. The

balance of the complaint refers to events which began on April 1,

2008, and which led to the amputation of a portion of his left

leg later that month. As his complaint states, he was discharged

from the OSU medical center and returned to the prison system at

either the end of April or the beginning of May, 2008. The

exhibits attached to the complaint confirm these dates; they show

that as early as February 18, 2009, he asked an attorney to

review the case for a potential malpractice claim. Therefore, it

is reasonable to conclude that all of the alleged improper

medical care culminating in what Mr. Wilder claims was the

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unnecessary amputation of his left leg above the knee occurred in

April, 2008. 

Mr. Wilder’s complaint is not dated, although it was

received by this Court on January 20, 2012. Even assuming that

it was placed in the hands of prison officials for mailing

shortly before that date, it is clear that it was not filed

within two years of the events in question, and that the statute

of limitations, unless tolled for some reason, would bar further

prosecution of this case.

Recognizing this problem, Mr. Wilder also filed a motion for

equitable tolling of time. In that filing, he argues that his

efforts to obtain an attorney to file the case in a timely manner

justify an extension of the statute of limitations because the

attorney’s failure to act is a denial of the right of access to

the courts, and that the time for his filing of a complaint is

tolled by statute during the term of his imprisonment. Neither

of these arguments is correct.

“Although the date of accrual for a §1983 claim is a matter

of federal law, state tolling principles apply to determine the

timeliness of claims.” Davis v. Clark County Bd. of Com'rs, 2010

WL 333651, *12 (S.D. Ohio Jan 21, 2010), citing Wilson v. Garcia,

471 U.S. 261, 268-69 (1985). Thus, the question is whether Ohio

would recognize tolling of the statute of limitations found in

§2305.10 based on the facts alleged by Mr. Wilder.

Davis also supplies the answer to this question. There,

this Court held that 

Typically, equitable tolling applies “only when a

litigant's failure to meet a legally-mandated deadline

unavoidably arose from circumstances beyond that

litigant's control. Graham-Humphreys v. Memphis Brooks

Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir.2000)

(citations omitted). “Absent compelling equitable

considerations, a court should not extend limitations

by even a single day.” Id. at 561. Additionally,

“neither ‘excusable neglect’ nor ignorance of the law

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are sufficient to invoke equitable tolling.” See Rose

v. Dole, 945 F.2d 1331, 1335 (6th Cir.1991) (“It is

well-settled that ignorance of the law alone is not

sufficient to warrant equitable tolling”); Harris v.

Hutchinson, 209 F.3d 325, 329-30 (4th Cir.2000)

(equitable tolling should apply only where petitioner

is prevented from asserting his claim by wrongful

conduct of the respondent or where extraordinary

circumstances beyond the petitioner's control make it

impossible to file the claim on time).

There are five factors to consider when determining the

appropriateness of tolling a statute of limitations:

“1) lack of notice of the filing requirement; 2) lack

of constructive knowledge of the filing requirement; 3)

diligence in pursuing one's rights; 4) absence of

prejudice to the defendant; and 5) the plaintiff's

reasonableness in remaining ignorant of the particular

legal requirement.” Truitt v. County of Wayne, 148 F.3d

644, 648 (6th Cir. 1998). 

Davis, at *12.

Here, Mr. Wilder has identified only two reasons why the

statute of limitations should be tolled: the failure of his

attorney to file an action in a timely fashion despite Mr.

Wilder’s best effort to have him do so, and the fact of Mr.

Wilder’s imprisonment. As to his imprisonment, the statutory

section Mr. Wilder cites in support of that argument applies only

to actions brought against prisoners, not actions in which they

are the plaintiffs. See Ohio Rev. Code §2305.15(B)(“When a

person is imprisoned for the commission of any offense, the time

of the person's imprisonment shall not be computed as any part of

any period of limitation, as provided in section 2305.09,

2305.10, 2305.11, 2305.113, or 2305.14 of the Revised Code,

within which any person must bring any action against the

imprisoned person”)(emphasis supplied). As to his efforts to

retain counsel to file suit, the various factors which make up

the equitable tolling doctrine do not recognize such efforts as a

reason for tolling the statute of limitations. 

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Again, this Court has held that

[i]n almost any case, a party who fails to file his or

her claim within the statute of limitations can assert

reasons for that failure. In order for equitable

tolling to be properly limited to extraordinary cases,

the facts must go beyond simply explaining why the

plaintiff failed to file within the limitations period,

and must demonstrate that, through no fault of the

plaintiff's, it was neither practical nor possible for

the plaintiff to satisfy the filing requirement. 

Todd v. Baker, 2007 WL 188740, *2 (S.D. Ohio January 22, 2007). 

In that case, the plaintiff argued that the failure of his

attorney to advise him of the existence of a viable claim until

after the statute of limitations had run justified extended the

statute. This Court disagreed, noting that “[e]quitable tolling

usually addresses cases where a party is prevented from asserting

his rights ‘in some extraordinary way’ rather than because of

poor advice or inaction on the part of others upon whom the

plaintiff may rely.” Id., citing, inter alia, Jones v. Morton,

195 F.3d 153, 159 (3d Cir. 1999). 

The actions of the plaintiff’s own attorney are not the type

of extraordinary events which can be used to toll the running of

the statute of limitations, especially because those actions

cannot be attributed to the defendants, who stand to be

disadvantaged if the Court were to permit the case to be filed

after the limitations period had otherwise run. See, e.g.,

Seoane-Vazquez v. Ohio State University, 2011 WL 249473 (S.D.

Ohio January 25, 2011); see also Keyse v. California Texas Oil

Corp., 590 F.2d 45 (2d Cir. 1978)(equitable tolling is generally

unavailable to a plaintiff who was represented by counsel). Ohio

courts generally follow the same principles, and have cited with

approval the Supreme Court’s decision in Irwin v. Dept. of

Veterans Affairs, 498 U.S. 89, 96 (1990), to the effect that “the

principles of equitable tolling ... do not extend to what is at

best a garden variety claim of excusable neglect” committed by a

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party’s own attorney. See Byers v. Robinson, 2008 WL 4328189,

*13-14 (Franklin Co. App. Sept. 23, 2008). Thus, even if Mr.

Wilder’s attorney failed, for some reason other than active

misconduct on the part of the defendants, to file this case on

time, that does not permit Mr. Wilder to file suit himself after

the statute of limitations has run.

Mr. Wilder appears to claim, however, that the actions of

his attorney in failing to file suit constitute a violation of

his right to access the courts, and that this violation, because

it is of constitutional dimension, should justify an extension of

the limitations period. Again, this is simply incorrect. The

constitutional provision which permits citizens, including those

in prison, to access the courts, prevents a denial of such access

only by those who act under color of state law or who engage in

“state action.” This Court has held that “[i]n order to bring a

successful action under §1983 for an alleged constitutional

violation, the defendant must be acting ‘under the color of law.’

In other words, ‘[l]ike the state action requirement of the

Fourteenth Amendment, the under-color-of-state-law element of §

1983 excludes from its reach “merely private conduct, no matter

how discriminatory or wrongful.”’ American Mfrs. Mut. Ins. Co.

v. Sullivan, 526 U.S. 40, 50 (1999)(citing Blum v. Yaretsky, 457

U.S. 991, 1002 (1982))....” Appelgarth v. Hughes, 2006 WL

3491149, *1 (S.D. Ohio Dec. 1, 2006), adopted and affirmed 2007

WL 120778 (S.D. Ohio Jan. 10, 2007). As the Court stated in that

case, because the attorney accused of violating the plaintiff’s

constitutional rights was “a privately retained attorney....

[t]here is no government involvement or action” and no

constitutional violation. Id. at *2. See also Halter v. Sargus, 

2007 WL 2323389 (S.D. Ohio August 9, 2007). Consequently, Mr.

Wilder cannot claim that his constitutional right of access to

the courts was violated by Mr. Washington’s failure to file a

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complaint within the applicable limitations period. For the same

reason, he has no valid constitutional claim against Mr.

Washington or any of the other private-citizen defendants, even

if their alleged actions or inactions occurred somewhat later in

time that the ones he attributes to the defendants who are or

were employed by the Ohio Department of Rehabilitation and

Correction. Further, any state law claims he might have against

any of the defendants should not be heard by this Court because

there is no viable federal law claim pleaded in the complaint. 

See 28 U.S.C. §1367(c)(“The district courts may decline to

exercise supplemental jurisdiction over a claim [over which there

is no original jurisdiction] if ... (3) the district court has

dismissed all claims over which it has original jurisdiction”).

IV.

For the reasons set forth above, it is recommended that all

of the federal law claims asserted in this case be dismissed

under 28 U.S.C. §1915A for failure to state a claim upon which

relief can be granted - those claims being barred by the statute

of limitations - and that any state law claims be dismissed

without prejudice under 28 U.S.C. §1367(c)(3). It is further

recommended that if this recommendation is adopted, a copy of the

complaint, this Report and Recommendation, and the dismissal

order be mailed to each of the defendants.

 V.

If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

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objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

 United States Magistrate Judge

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