United States District Court, N.D. Mississippi, Greenville Division
ORDER ADOPTING REPORT AND RECOMMENDATION
the Court is the Report and Recommendation of the United
States Magistrate Judge dated October 15, 2018, and
Plaintiffs objections thereto. See Docs. #20 &
a prisoner proceeding pro se, filed the instant
civil rights lawsuit under 42 U.S.C. § 1983 against the
Mississippi Department of Corrections ("MDOC"),
MDOC's Superintendent, MDOC's contract medical
provider, and that entity's medical director.
See Doc. #1. In his lawsuit, Plaintiff claims that
he contracted Hepatitis C through MDOC's unsanitary
barbering practices, and that he is being denied treatment
for his disease. Following a Spears hearing, the
magistrate judge entered a Report and Recommendation in which
it was recommended that Plaintiffs claim regarding unsanitary
barbering practices be dismissed as barred by the applicable
statute of limitations and that Plaintiffs claim of
inadequate medical care proceed against all named Defendants.
See Doc. #20.
by the recommendations, Plaintiff claims that his ignorance
of the statute of limitations and "continuing wrong
rule" should allow his claims to proceed. See
objections to a report and recommendation have been filed, a
court must conduct a "de novo review of those portions
of the ... report and recommendation to which the [aggrieved
party] specifically raised objections. With respect to those
portions of the report and recommendation to which no
objections were raised, the Court need only satisfy itself
that there is no plain error on the face of the record."
Gauthier v. Union Pac. R.R. Co., 644 F.Supp.2d 824,
828 (E.D. Tex. 2009) (citing Douglass v. United Serv.
Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)).
the Court notes that the Report and Recommendation did not
recommend dismissal of Plaintiff s denial of medical care
claim against any named Defendant. See Doc. #20.
Rather, it ordered all named Defendants to be served and
respond to the allegation. See Doc. #19 & Doc.
#21. Accordingly, Plaintiffs objection to the recommendation
as to his denial of medical care claim is based on a
misunderstanding of the recommendation, and any objection
regarding same is overruled.
the Report and Recommendation found the following regarding
Plaintiffs claim of unsanitary barbering practices:
In a § 1983 action, a district court must apply the
State's general statute of limitations for personal
injury actions. See Wallace v. Kato, 549 U.S. 384,
387 (2007); Owens v. Okure, 488 U.S. 235, 250
(1989). In Mississippi, that period is three years.
See Miss. Code Ann. § 15-1-49; James v.
Sadler, 909 F.2d 834, 836 (5th Cir. 1990). The accrual
period for an injury "begins to run the moment the
plaintiff becomes aware that he has suffered an injury or has
sufficient information to know that he has been
injured." Pitrowski v. City of Houston, 237
F.3d 567, 576 (5th Cir. 2001) (internal citations and
quotations omitted). Here, that period began in 2012, but
Davis waited until 2018 to bring this action. Accordingly,
any claim Davis might have once had that he contacted a
communicable disease through MDOC's unsanitary barbering
practices is barred by the statute of limitations. This claim
should be dismissed.
Doc. #20 at 2-3.
plaintiffs ignorance of the applicable statute of limitations
will not excuse its application. See Piotrowski, 237
F.3d at 576 ("A plaintiff need not know that he has a
legal cause of action [for a claim to accrue under §
1983]; he need know only the facts that would ultimately
support a claim."); Barrow v. New Orleans S.S.
Ass'n, 932 F.2d 473, 478 (5th Cir.1991) (finding
ignorance of the law does not excuse a person's failure
to comply with a statute of limitations). Plaintiff knew as
of 2012 that he had contracted Hepatitis C, and he believed
at that time that he had contracted it through MDOC's
barbering practices. Accordingly, Plaintiffs argument that
the statute of limitations should be excused due to his
ignorance of the law is overruled.
Court also finds that there is no merit to Plaintiffs claim
that the continued use of allegedly unsanitary barbering
practices exempts him from application of the statute of
limitations. While a doctrine of continuing wrong might be
applicable to Plaintiffs failure to treat his illness, it is
not applicable to his claim that he contracted Hepatitis C in
2012, as that discrete injury had fully occurred by that
date. See, e.g., Walker v. Epps,587 F.Supp.2d 763,
772 (N.D. Miss. 2008) (noting "[a] continuing tort
sufficient to toll a statute of limitations ...