Report and Recommendation

Motion to Dismiss

1 Moore v. Hartley; 09-13536

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TERRENCE MOORE, Case No. 09-13536

Plaintiff, Arthur J. Tarnow

vs. United States District Judge

GEORGE HARTLEY, et al., Michael Hluchaniuk

United States Magistrate Judge

Defendants.

 /

REPORT AND RECOMMENDATION

DEFENDANTS’ MOTION TO DISMISS (Dkt. 15)

I. PROCEDURAL HISTORY

Plaintiff filed a prisoner civil rights action on September 8, 2009, alleging

that defendants, police officers employed by the City of Ferndale Police

Department, violated his rights under the United States Constitution. (Dkt. 1). 

This matter was referred to the undersigned for all pretrial purposes by District

Judge Arthur J. Tarnow on November 24, 2009. (Dkt. 17). 

On November 19, 2009, detectives George Hartley, Kenneth Denmark, John

Thull, Brendan Moore, Patrick Jones, and Lt. Norman Raymond, filed a motion to

dismiss plaintiff’s complaint. (Dkt. 15). Plaintiff filed a response along with a

document entitled “motion for summary judgment and to dismiss,” which the

undersigned construed as part of the response to the motion to dismiss. (Dkt. 19,
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Motion to Dismiss

2 Moore v. Hartley; 09-13536

21). Defendants filed a reply on December 15, 2009. (Dkt. 23).

For the reasons set forth below, the undersigned RECOMMENDS that

defendants’ motion to DISMISS be GRANTED and that plaintiff’s complaint be

DISMISSED with prejudice.

II. STATEMENT OF FACTS

According to the complaint, on January 19, 2005, plaintiff was detained on a

child support warrant. (Dkt. 1). Plaintiff claims this was a pretense for detaining

him in connection with the murder of Amjed Abdullah. Plaintiff claims that Thull

grabbed his throat to keep him from yelling when Hartley denied plaintiff’s request

for an attorney. Plaintiff claims that he was choked with enough force to pin him

back in a chair where he was then handcuffed. Plaintiff alleges that he was

dragged to a juvenile cell based on his requests for an attorney and that Hartley

clicked the handcuffs on plaintiff’s wrists until he stopped yelling for help.

According to plaintiff, later that evening, Hartley approached him and asked

him if he wanted to go home. Plaintiff said yes in order to relieve the tightened

handcuffs. Hartley then told plaintiff that he would have to make a statement

about the relationship of Eduardo Rodriguez to Mr. Abdullah, to which plaintiff

agreed. Plaintiff alleges that he was slapped repeatedly by Thull for requesting an

attorney. Plaintiff asserts that he repeatedly requested, and was denied, his antipsychotic medications. Plaintiff says he was coerced into signing a blank form
1

 Defendants argue that plaintiff cannot bring a claim for deliberate

indifference under the Eighth Amendment. Technically, defendants are correct. 

However, it is well-established that “[p]retrial detainees have a right under the

Fourteenth Amendment to adequate medical treatment, a right that is analogous to

the right of prisoners under the Eighth Amendment.” Estate of Carter v. City of

Detroit, 408 F.3d 305, 311 (6th Cir. 2005), citing, Watkins v. City of Battle Creek,

273 F.3d 682, 685-86 (6th Cir. 2001).

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Motion to Dismiss

3 Moore v. Hartley; 09-13536

with the promise of receiving his medications. Plaintiff says that he never received

any medications from January 19 - 22, 2005 and was also deprived sleep and

questioned while sleep-deprived. On January 22, 2005, plaintiff claims that

Denmark and Hartley pushed him onto the floor while he was handcuffed, causing

him to suffer a bruised rib and a punctured lung. Plaintiff says he received no

medical assistance until January 24, 2005. Plaintiff also claims that he was denied

his anti-psychotic medications from January 26-29, 2005. 

Based on these events, plaintiff claims that a variety of his constitutional

rights were violated and he filed this action on September 8, 2009, pursuant to 28

U.S.C. § 1983. While plaintiff identifies a host of constitutional violations, the

facts on which they are based boil down to essentially two theories: excessive force

during his pretrial detainment and interrogation and deliberate indifference to his

medical needs during pretrial detainment.1
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Motion to Dismiss

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III. ANALYSIS AND CONCLUSIONS

A. Standard of Review

Defendants have filed motions to dismiss under Federal Rule of Civil

Procedure 12(b)(6). Rule 12(d) provides that, if the moving party presents and the

Court relies on matters outside the pleadings, “the motion [under Rule 12(b)(6)]

must be treated as one for summary judgment and disposed of as provided in Rule

56. All parties must be given a reasonable opportunity to present all the material

that is pertinent to the motion.” Fed.R.Civ.P. 12(d). Thus, the plain language of

the rule requires that if the motion relies on outside materials that the Court

considers, then the motion “must” be converted into a motion for summary

judgment pursuant to Rule 56. See Song v. City of Elyria, Ohio, 985 F.2d 840, 842

(6th Cir. 1993). With respect to plaintiff’s claim that his mental illness should

operate to toll the statute of limitations, the parties submitted, and the undersigned

has considered, evidence that is outside the pleadings. Thus, the Court will treat

the motion to dismiss as one for summary judgment under Rule 56.

Summary judgment is proper where no genuine issue of material fact exists

and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.

56(c). In considering a motion for summary judgment, the evidence and all

reasonable inferences must be construed in favor of the nonmoving party. Tanner

v. County of Lenawee, 452 F.3d 472, 477 (6th Cir. 2006). “[A] party seeking
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Motion to Dismiss

5 Moore v. Hartley; 09-13536

summary judgment always bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Rule 56 limits the materials the Court may consider in deciding a motion

under the rule: “pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits.” Copeland v. Machulis, 57 F.3d 476, 478 (6th

Cir. 1995) (citation omitted). “A party opposing a motion for summary judgment

cannot use hearsay or other inadmissible evidence to create a genuine issue of

material fact.” Id., quoting, Sperle v. Michigan Dept. of Corrections, 297 F.3d

483, 495 (6th Cir. 2002) (citation and quotation marks omitted). 

B. Legal Standards - Statute of Limitations

A defendant raising the statute of limitations as an affirmative defense has

the burden of proving that the action is time-barred. Campbell v. Grand Trunk W.

R.R. Co., 238 F.3d 772, 775 (6th Cir. 2001). To prevail on this affirmative

defense, defendants must prove both that: (1) the statute of limitations has run; and

(2) that no genuine issue of material fact exists as to when plaintiff’s cause of

action accrued. Id. If defendants meet this burden, the burden then shifts to

plaintiff to establish an exception to the statute of limitations. Id. The nonmoving
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6 Moore v. Hartley; 09-13536

party may not rest on the mere allegations in the pleadings. Id. However, if

defendants fail to meet their burden of proof, plaintiff has no obligation to proffer

any additional evidence to rebut the statute of limitations defense. Fonseca v.

CONRAIL, 246 F.3d 585, 590-91 (6th Cir. 2001). 

The nature of plaintiff’s burden with respect to establishing an exception

depends on the exception at issue. This Court recently agreed with the Tenth

Circuit that “for equitable tolling of the statute of limitations, the burden lies with

the plaintiff; for [tolling based on] administrative exhaustion under 42 U.S.C.

§ 1997e, the burden lies with the defendants.” Jones v. Richardson, 2008 WL

907383, *11 (E.D. Mich. 2008), quoting, Roberts v. Barreras, 484 F.3d 1236 (10th

Cir. 2007).

Statutes of limitation are established to extinguish rights, justifiable or not,

that might otherwise be asserted. Kavanagh v. Noble, 332 U.S. 535, 539 (1947). 

They are designed, among other things, to compel plaintiffs to exercise their rights

of action within a reasonable time; to protect potential defendants from the

protracted fear of litigation; and to promote judicial efficiency by preventing

defendants and courts from having to litigate stale claims. Moll v. Abbott Labs.,

444 Mich. 1, 14, 506 N.W.2d 816 (1993); see also U.S. v. $515,060.42 in U.S.

Currency, 152 F.3d 491, 503 (6th Cir. 1998). As such, these statutory restrictions

are not simply technicalities; rather, they are fundamental to a well-ordered judicial
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system. Bd. of Regents of the Univ. of the State of N.Y. v. Tomanio, 446 U.S. 478,

487 (1980). 

Because Congress did not specifically adopt a statute of limitations

governing § 1983 actions, “federal courts must borrow the statute of limitations

governing personal injury actions in the state in which the section 1983 action was

brought.” Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir. 2003), citing

Wilson v. Garcia, 471 U.S. 261, 275-276 (1985). The Sixth Circuit has held that

the “appropriate statute of limitations to be borrowed for § 1983 actions arising in

Michigan is the state’s three-year limitations period for personal injury claims.”

Drake v. City of Detroit, Michigan, 266 Fed.Appx. 444, 448 (6th Cir. 2008), citing,

Mich. Comp. Laws § 600.5805(10); Chippewa Trading Co. v. Cox, 365 F.3d 538,

543 (6th Cir. 2004); see also, Owens v. Okure, 488 U.S. 235, 249-250 (1989)

(Where “state law provides multiple statutes of limitation for personal injury

actions, courts considering § 1983 claims should borrow the general or residual

statute for personal injury actions.”). 

The characterization of a claim, including the determination of when the

cause of action accrued, is determined by federal law. Wallace v. Kato, 549 U.S.

384, 388 (2007). The statute of limitations begins to run under federal law “when

plaintiffs knew or should have known of the injury which forms the basis of their

claims.” Ruff v. Runyon, 258 F.3d 498, 500 (6th Cir. 2001). “In determining when
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8 Moore v. Hartley; 09-13536

the cause of action accrues in section 1983 actions, [courts] have looked to what

event should have alerted the typical lay persons to protect his or her rights.” 

Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 520 (6th Cir. 1997). 

1. Excessive force.

“A § 1983 claim for excessive force in effectuating an arrest accrues at the

time of arrest.” Fox, 489 F.3d at 233, citing, Wallace v. Kato, 549 U.S. at 388; see

also Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980), cert. denied,

450 U.S. 920 (1981) (A claim for excessive force accrues when the use of force

occurred.). When there are no disputed facts on this question, it is for the Court to

decide. See Moll, 444 Mich. at 26 (Where the facts are undisputed, whether a

cause of action is barred by the statute of limitations is a question of law to be

determined by the trial judge.). There is no dispute that plaintiff’s arrest occurred

on January 19, 2005. In addition, plaintiff alleges that excessive force was used

during his interrogation and pretrial detention, between January 19 - 24, 2005. 

Thus, plaintiff’s excessive force claims accrued between January 19 - 24, 2005 and

the limitations period expired, at the latest, on January 24, 2008. There is also no

dispute that plaintiff’s complaint was not filed until September 8, 2009, well in

excess of the three years prescribed by the Michigan statute of limitations

applicable to § 1983 claims. Thus, the undersigned concludes that plaintiff’s

excessive force claims are presumptively time-barred. 
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9 Moore v. Hartley; 09-13536

2. Deliberate indifference

For purposes of § 1983, a cause of action accrues “when the plaintiff knows

or has reason to know of the injury that is the basis of his action.” Hermansen v.

Schickel, 1999 WL 1282438, at *1 (6th Cir. 1999), citing, Collyer v. Darling, 98

F.3d 211, 220 (6th Cir. 1996). Where the plaintiff alleges an injury due to the

withholding of medication, the limitations period begins to run upon “the initial

denial of medication” where that denial “would have alerted the average lay person

to take steps to protect his rights at that time.” Gray v. Dorning, 1999 WL

1336118, at *1 (6th Cir. 1999); see also Hawkins v. Spitters, 79 Fed.Appx. 168,

169 (6th Cir. 2003) (a claim accrues when the plaintiff “clearly ha[s] reason to

challenge what he believe[s] to be deliberate indifference to his serious medical

need.”). If the “continuing violations doctrine” is employed, the cause of action

continues to accrue all the while treatment or care is denied. See e.g., Ellis v.

Vadlamudi, 568 F.Supp.2d 778 (E.D. Mich. 2008).

In this case, plaintiff’s deliberate indifference claims all accrued between

January 19 and January 29, 2005, the time frame in which he alleges that he was

denied medications and denied treatment for the injuries inflicted on him. Plaintiff

does not allege or identify any continuing denial of care or treatment after January

29, 2005. Based on the foregoing, the latest the statute of limitations could have

expired is January 29, 2008. The limitations period applicable to his deliberate
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Motion to Dismiss

10 Moore v. Hartley; 09-13536

indifference claims was long expired when plaintiff filed his complaint on

September 8, 2009. Thus, plaintiff’s deliberate indifference claims are barred by

the statute of limitations. 

3. Tolling.

Plaintiff does not dispute that the statute of limitations, on its face, bars his

claims. Rather, plaintiff contends that the statute of limitations was tolled due to

his alleged mental derangement or insanity. Plaintiff relies on Michigan’s tolling

statute, which provides, in relevant part:

(1) If the person first entitled to make an entry or bring

an action under this act . . . is insane at the time the claim

accrues, the person or those claiming under the person

shall have 1 year after the disability is removed through

death or otherwise, to make the entry or bring the action

although the period of limitations has run . . .

(2) The term insane as employed in this chapter means a

condition of mental derangement such as to prevent the

sufferer from comprehending rights he or she is

otherwise bound to know and is not dependent on

whether or not the person has been judicially declared to

be insane. 

Mich. Comp. Laws § 600.5851(1)-(2). Section 600.5851(1) provides that, where

the plaintiff is deemed insane at the time the claim accrues, the plaintiff is

permitted a “year of grace” from the time when the disability is removed in which

to file his or her claim. English v. Bousamra, 9 F.Supp.2d 803, 808 (W.D. Mich.

2008), citing, Honig v. Liddy, 199 Mich.App. 1, 3-4, 500 N.W.2d 745 (1993);
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11 Moore v. Hartley; 09-13536

Lemmerman v. Fealk, 449 Mich. 56, 70, 534 N.W.2d 695 (1995). Further, to

prevent the one-year period from beginning to run, the condition of incapacity

must be continuous. English, 9 F.Supp.2d at 808, citing, Mich. Comp. Laws

§ 600.5851(4) (“Successive disabilities shall not be tacked.”). And, as noted

above, plaintiff bears the burden of demonstrating that he is entitled to the benefit

of this statute. See Warren Consolidated Schools v. W.R. Grace & Company, 205

Mich.App. 580, 583, 518 N.W.2d 508 (1994) (“[W]here it appears that the cause of

action is prima facie barred, the burden of proof is upon the party seeking to

enforce the cause of action to show facts taking the case out of the operation of the

statute of limitations[.]”).

In his response, plaintiff does not offer any evidence to support his claim of

insanity or that he was insane continuously from the time his claims began to

accrue. In addition, plaintiff does not identify when, if ever, his incapacity of

insanity was ever lifted. In contrast, in reply, defendants offer reports from the

Michigan Department of Community Health dated April 14, 2005, indicating that

plaintiff was found competent to stand trial. (Dkt. 23-2). The examiner found that

while there was evidence to satisfy the statutory criteria for “mental illness,” the

requirements for “legal insanity” were not met. Id. Despite the opportunity to do

so, plaintiff has not provided any supplemental evidence regarding his claim that

the statute of limitations should be tolled based on his mental illness.
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The Supreme Court has framed the standard for determining competence to

stand trial as “whether the defendant has ‘sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding’ and has ‘a rational

as well as factual understanding of the proceedings against him.’” Godinez v.

Moran, 509 U.S. 389, 396 (1993), quoting, Dusky v. United States, 362 U.S. 402,

402 (1960). Under Michigan law, “[a] defendant to a criminal charge ... shall be

determined incompetent to stand trial only if he is incapable because of his mental

condition of understanding the nature and object of the proceedings against him or

of assisting in his defense in a rational manner ... .” Mich. Comp. Laws

§ 300.2020(1). Notably, the standards for determining legal competency to stand

trial and for insanity for purposes of the tolling statute are not the same. See e.g.,

Douglas v. York County, 433 F.3d 143 (1st Cir. 2005) (“[T]he standards for

determining mental illness for purposes of the tolling statute are not necessarily the

same as when determining mental competence for the ability to marry and divorce

... or to stand trial ... or to avoid appointment of a guardian” because “the legal

standard of competency varies for different purposes.”). However, under the

circumstances presented, where plaintiff has not met his burden of proving that the

statutes of limitation barring his claims should be tolled due to an alleged mental

illness or insanity, the undersigned concludes that the differences in the standards

are not material to the outcome of this decision. In conclusion, the undersigned
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13 Moore v. Hartley; 09-13536

suggests that the statutes of limitations barring plaintiff’s claims have not been

tolled.

Based on the foregoing, the undersigned suggests that the other grounds for

dismissal raised in defendant’s motion need not be addressed.

IV. RECOMMENDATION

Based on the foregoing, the undersigned RECOMMENDS that defendants’

motion to DISMISS be GRANTED and that plaintiff’s complaint be

DISMISSED with prejudice.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”
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14 Moore v. Hartley; 09-13536

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

s/Michael Hluchaniuk 

Date: June 4, 2010 Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on June 4, 2010, I electronically filed the foregoing paper with

the Clerk of the Court using the ECF system, which will send electronic

notification to the following: T. Joseph Seward, and I certify that I have mailed by

United States Postal Service the paper to the following non-ECF participant(s):

Terrence Moore, ID# 208380, CHIPPEWA CORRECTIONAL FACILITY, 4269

W. M-80, Kincheloe, MI 49784.

s/Tammy Hallwood 

Case Manager

U.S. District Court

600 Church Street

Flint, MI 48502

(810) 341-7887

tammy_hallwood@mied.uscourts.gov