Jerry Miller v. Cocke Cnty., Tenn. ( 2022 )

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NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0024n.06
Case No. 21-5585
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 11, 2022
)
JERRY MILLER, DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
COCKE COUNTY, TENNESSEE, et al., ) TENNESSEE
Defendants, )
)
JOSHYUA SHULTS; CITY OF NEWPORT, )
TENNESSEE, )
)
Defendants-Appellees.
)
Before: SUTTON, Chief Judge; CLAY and McKEAGUE, Circuit Judges.
SUTTON, Chief Judge. After Jerry Miller suffered injuries from an alleged assault by
police officers, he sued Cocke County and several “John Does” for using excessive force and
failing to provide medical care. More than a year after the incident, Miller amended his complaint
to add Officer Joshyua Shults and the City of Newport, Tennessee, as defendants in the case. The
district court dismissed the amendment to the complaint on the ground that the statute of limitations
barred it. We affirm.
On February 21, 2019, Officer Shults of the Newport Police Department arrested Miller
for interfering with a 911 call arising out of a domestic dispute with his girlfriend. During the
booking process at the Cocke County Jail, Officer Kelton Townsend “grabbed Miller up by the
Case No. 21-5585, Miller v. Cocke Cnty., Tenn., et al.
neck and body slammed him on the floor, jumped on him, and thereafter picked him up again and
threw him hard against the wall.” R.45 at 6. Miller suffered eight broken ribs and a punctured
lung. After the assault, officers put Miller in a holding cell and failed to provide medical attention
despite his repeated pleas for help.
Miller appeared before a magistrate the next morning, and the court released him from
custody due to his apparent medical distress. He was transported to a hospital to seek treatment
for his injuries and remained there for “some time.” Id. at 7. Miller retained a lawyer, who made
an Open Records Act request to the Cocke County Sheriff and Attorney to secure evidence of the
assault and learn the identities of all officers involved. When various county officials failed to
turn over the relevant documents and told him that the video of the incident at the jail no longer
existed, Miller sued Cocke County and unknown “John Does” on August 12, 2019.
On October 15, 2019, the County sent Miller a video it had obtained from the City of
Newport. The video came from Officer Shults’s bodycam and captured part of the incident in the
county jail. The video prompted Miller to think that Officer Shults played a role in the assault.
Miller filed an amended complaint on April 9, 2020, in which he named Officer Townsend, Officer
Shults, and the City of Newport as defendants. His § 1983 claim alleged excessive force and
deliberate indifference to medical needs in violation of his rights as a pretrial detainee. Miller
settled with Cocke County and Townsend and voluntarily dismissed them from the case.
Officer Shults and the City of Newport, the remaining defendants, moved to dismiss the
complaint against them. See Fed. R. Civ. P. 12(b)(6). The district court dismissed the action on
the ground that the statute of limitations barred it, and it denied Miller leave to amend his complaint
on the ground that doing so would be futile. Miller appealed.
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Case No. 21-5585, Miller v. Cocke Cnty., Tenn., et al.
Statute of limitations. Because “time is constantly destroying the evidence of rights,” Wood
v. Carpenter,

101 U.S. 135

, 139 (1879), one’s “right to be free of stale claims” eventually
“prevail[s] over the right to prosecute them,” Ord. of R.R. Telegraphers v. Ry. Express Agency,

321 U.S. 342

, 349 (1944). Hence the ubiquity of statutes of limitation, which “are found and
approved in all systems of enlightened jurisprudence.” Wood,

101 U.S. at 139

. Section 1983, for
its part, does not contain a statute of limitations of its own. It incorporates the relevant statute of
limitations from the State in which the underlying constitutional tort arises.           Roberson v.
Tennessee,

399 F.3d 792

, 794 (6th Cir. 2005). Tennessee’s one-year limit for personal injury
actions, all agree, governs Miller’s claims. Eidson v. Tenn. Dep’t of Child.’s Servs.,

510 F.3d 631

,
634 (6th Cir. 2007); Tenn. Code Ann. § 28-3-104(a)(1).
The key question in the case turns on when the one-year limitations clock starts.
The ground rules on accrual go a long way to deciding the case. Federal law determines
when a § 1983 claim accrues. Wallace v. Kato,

549 U.S. 384

, 388 (2007). The limitations clock
starts “when the plaintiff knows or has reason to know of the injury which is the basis of his
action.” Sevier v. Turner,

742 F.2d 262

, 273 (6th Cir. 1984). A plaintiff has reason to know about
an injury when he “should have discovered it through the exercise of reasonable diligence.”

Id.

This objective inquiry requires us to consider what event should have alerted the average lay
person to protect his rights. Johnson v. Memphis Light Gas & Water Div.,

777 F.3d 838

, 843 (6th
Cir. 2015).
Miller had reason to know of his injury at the time of his detainment in the Cocke County
Jail in February 2019. On February 21, he alleges, a police officer grabbed him by the neck, body
slammed him on the floor, and then picked him up and threw him hard against a wall. He suffered
eight broken ribs and a punctured lung as a result and received treatment in a hospital the next day.
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Case No. 21-5585, Miller v. Cocke Cnty., Tenn., et al.
We break no new ground in saying that these events would alert a typical lay person to protect his
rights. The clock thus started ticking on Miller’s claim at that time, giving him until February
2020 to sue Officer Shults and the City of Newport for any role they played in the incident. But
he did not sue them until April 2020. That was two months too late.
Precedent confirms what this timetable shows. Time and again in applying federal law to
similar claims, we have said that the limitations clock starts when the plaintiff should have known
of his injury. A pretrial detainee’s claims for excessive force and failure to provide “essential
supplies,” for example, accrued at the time the injuries occurred. Cretacci v. Call,

988 F.3d 860

,
863, 868 (6th Cir. 2021). “A § 1983 claim for excessive force in effectuating an arrest” likewise
“accrue[d] at the time of arrest.” Fox v. DeSoto,

489 F.3d 227

, 233 (6th Cir. 2007). So too the
limitations clock started for an excessive force claim against unnamed police officers on the date
of the incident. Cox v. Treadway,

75 F.3d 230

, 239–40 (6th Cir. 1996).
Miller raises the possibility that the limitations clock should not have started until he
discovered Officer Shults’s identity. He relies on the fact that he did not receive Officer Shults’s
bodycam video until October 2019 and claims that United States v. Kubrick shows that his claim
did not accrue until that point.

444 U.S. 111

 (1979).
But Kubrick interpreted the Federal Tort Claims Act and noted, without dispute by either
party, that discovery of an injury and its cause kickstarts the limitations period in medical
malpractice cases.

Id. at 119

–21. Medical malpractice cases pose special difficulties when it
comes to identifying the nature and cause of an injury. See

id. at 120 & n.7

. This is not a medical
malpractice case. What’s more, “knowledge of identity was not an issue” in Kubrick, and the
Court did not say “that accrual of a cause of action is always deferred until such time as the plaintiff
is aware of the identity of the particular individual who may have caused his injury.” Diminnie v.
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Case No. 21-5585, Miller v. Cocke Cnty., Tenn., et al.
United States,

728 F.2d 301

, 304 (6th Cir. 1984) (per curiam). Our long-standing rule instead is
that a § 1983 cause of action accrues “when the plaintiff knows or has reason to know of the injury
which is the basis of his action.” Sevier,

742 F.2d at 273

. As noted, Miller had reason to know of
his alleged injuries in February 2019, when Officer Townsend assaulted him.
Miller adds that courts may consider state law in determining when a cause of action
accrues. Under Tennessee law, he notes, a cause of action in tort does not accrue until the plaintiff
discovers how a breach of a duty to him occurred and the identity of the person who breached the
duty. Redwing v. Cath. Bishop for the Diocese of Memphis,

363 S.W.3d 436

, 458–59 (Tenn. 2012).
But “the accrual date of a § 1983 cause of action is a question of federal law that is not resolved
by reference to state law.” Wallace, 549 U.S. at 388.
A road not taken by Miller reinforces the point. Civil Rule 15 allows amendments to a
complaint to “relate back” to the date of the original pleading under discrete circumstances. A
plaintiff may change the party “against whom a claim is asserted,” for example, if the new party
“should have known that the action would have been brought against it, but for a mistake
concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C). But suing “John Doe”
defendants first and replacing them with named defendants later is a “change in parties,” and “such
amendments do not satisfy the ‘mistaken identity’ requirement of Rule 15(c)[].” Cox,

75 F.3d at 240

. Rule 15 thus would not help Miller even if he had invoked it. He “did not make a mistake
about which defendant to sue; he simply did not know whom to sue or opted not to” amend his
complaint to name these defendants “within the limitations period.” Smith v. City of Akron, 476 F.
App’x 67, 69 (6th Cir. 2012). The rule’s relation-back protections “were not designed to correct
that kind of problem.”

Id.

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Case No. 21-5585, Miller v. Cocke Cnty., Tenn., et al.
It bears adding that a plaintiff may seek permission to toll the statute of limitations to avoid
the problem Miller faces. Unlike the question when a § 1983 claim accrues, state law controls the
tolling inquiry. See Bishop v. Child.’s Ctr. for Developmental Enrichment,

618 F.3d 533

, 537 (6th
Cir. 2010). In the district court, Miller argued unsuccessfully that fraudulent concealment tolled
the statute until he received Officer Shults’s bodycam video in October 2019. But he does not
renew the argument on appeal.
Motion to amend. Miller separately argues that the district court should have granted his
motion to amend his complaint. A court may deny a motion to amend if it would be futile, meaning
that “the proposed amendment would not permit the complaint to survive a motion to dismiss.”
Miller v. Calhoun County,

408 F.3d 803

, 817 (6th Cir. 2005). The district court determined that
Miller’s proposed amendment would be futile because any new claim would remain time barred.
The court assessed Miller’s proposed allegations supporting his new theory and determined that
he failed to state specific facts supporting it. See Fed. R. Civ. P. 9(b).
Miller’s response misses. He claims that the district court denied leave to amend because
of his failure to comply with local court rules and to assert reasons for his amended complaint in
his supporting memorandum.         But, as noted, the district court denied the motion for the
independent reason that any amendment would be futile. On appeal, Miller challenges the district
court’s futility analysis with an extended quotation to this Court’s precedent, see Parchman v. SLM
Corp.,

896 F.3d 728

, 736 (6th Cir. 2018); however, without more, he abandons any avenue to relief
on this score and leaves us without occasion to second-guess the district court’s analysis, see Spirko
v. Mitchell,

368 F.3d 603