Ruby Garnett v. University Hospital

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-10599
AUGUST 29, 2013
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D.C. Docket No. 00-00016-CV-1
RUBY M. GARNETT,
Plaintiff-Appellant,
versus
UNIVERSITY HOSPITAL,
DOREEN LUIS, M.D., et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(August 29, 2013)
Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Ruby M. Garnett appeals pro se the partial dismissal and partial summary
judgment against her amended complaint that her civil rights were violated when
she was taken into custody by officers of the Sheriff’s Department of Richmond
County, Georgia, and transported to University Hospital, where she underwent a
medical evaluation. 42 U.S.C. § 1983. The district court dismissed as untimely
Garnett’s claims against University Health Services, Inc., Coastal Physician
Services of the Southeast, Inc., and Dr. Doreen Luis. The district court also
dismissed Garnett’s claims against Delaine Pittman, a nurse at University Hospital,
and Rebecca Gravely, a former employee of the Sheriff’s Department, because
they were not timely served with a copy of the summons and complaint. The
district court entered summary judgment based on qualified immunity in favor of
Charles Webster, the Sheriff of Richmond County, and two of his employees, John
Paul Jones and Nancy Powell. Garnett appeals all these rulings. We affirm.
The district court did not err by dismissing as untimely Garnett’s claims
against University Health, Coastal Physician Services, and Dr. Luis. Garnett’s
claims accrued when she knew or should have known that she was injured, see
Cummings v. Washington Mut., 650 F.3d 1386, 1391 (11th Cir. 2011), which was
when she underwent the medical evaluation on January 25, 1998. Garnett had to
commence an action “within two years” of that date, see Ga. Code Ann. § 9-3-33,
but she waited until January 31, 2000, to file her amended complaint. Garnett’s
2
complaint against University Health, Coastal Physician Services, and Dr. Luis was
untimely.
The district court also did not abuse its discretion by dismissing the claims
against Pittman and Gravely because they were not timely served with a copy of
Garnett’s summons and amended complaint. “If service of the summons and
complaint is not made upon a defendant within 120 days after the filing of the
complaint, the court, upon motion or on its own initiative after notice to the
plaintiff, shall dismiss the action without prejudice.” Fed. R. Civ. P. 4(m). On
October 20, 2000, more than 150 days after Garnett filed her amended complaint,
she was ordered to provide good cause why she had not served Pittman and
Gravely. See id. Garnett failed to establish that “some outside factor, such as
reliance on faulty advice, rather than inadvertence or negligence, prevented
service.” See Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th
Cir. 2009) (internal quotation marks and citation omitted). Garnett argued that she
phrased incorrectly her request to serve Gravely, but Garnett twice received
instructions about service of process and served other defendants. See Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Garnett also argued that she
intended to serve Pittman simultaneously with a doctor whom she had yet to
identify, but that explanation failed to excuse her from timely serving Pittman. See
3
Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). The district court acted
within its discretion to dismiss the claims against Pittman and Gravely.
The district court correctly granted summary judgment in favor of Webster,
Jones, and Powell based on qualified immunity. Because Garnett did not dispute
that the officers were acting within their discretionary authority, the only issue we
need address is whether Garnett established that the officers violated clearly
established law. See Whittier v. Kobayashi, 581 F.3d 1304, 1308 (11th Cir. 2009).
Garnett alleged that Powell, a dispatcher in the Sheriff’s Office, conspired with
Deputy Jones in her false arrest and forced her to undergo medical treatment, but
Deputy Jones had at least arguable probable cause to arrest Garnett for falsely
reporting a crime, see Ga. Code Ann. § 16-10-26, and to transport her to the
hospital when she appeared to be mentally ill and required medical treatment, see
id. § 37-3-42. See Coffin v. Brandau, 642 F.3d 999, 1006 (11th Cir. 2011) (en
banc). Deputy Jones also did not violate Garnett’s right to free speech under the
First Amendment when he arrested her in the midst of her fifth consecutive
telephone call to the police, see Redd v. City of Enterprise, 140 F.3d 1378, 1383
(11th Cir. 1998), nor did the deputy use more force than necessary if he placed
handcuffs on Garnett to restrain her while transporting her to the hospital, see Lee
v. Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002). Garnett failed to allege that
Sheriff Webster participated in the arrest or that he had notice of and failed to
4
correct any unlawful conduct by his officers. See Brown v. Crawford, 906 F.2d
667, 671 (11th Cir. 1990). The officers were entitled to qualified immunity.
We AFFIRM the partial dismissal of and partial summary judgment against
Garnett’s complaint.
5