RAYMOND DAVID WATSON v. CLIFF GILL, JAILER; MCCRACKEN COUNTY, KENTUCKY
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RENDERED: December 4, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1996-CA-002717-MR
RAYMOND DAVID WATSON
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE ROBERT J. HINES, JUDGE
ACTION NO. 95-CI-000257
CLIFF GILL, JAILER;
MCCRACKEN COUNTY, KENTUCKY
APPELLEES
OPINION
AFFIRMING IN PART;
VACATING IN PART AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON AND HUDDLESTON, JUDGES.
EMBERTON, JUDGE:
The appellant, Raymond Watson, pro se, appeals
from a summary judgment in his action alleging the appellee,
McCracken County Jailer Cliff Gill, deprived him of medical
attention while incarcerated at the jail.
On November 30, 1993, Watson was arrested, charged with
murder, and placed in the McCracken County jail.
On March 20,
1995, Watson filed this action against Gill alleging, that from
the date of his incarceration through October 14, 1994, when he
was transferred to the Eastern Kentucky Correctional Complex, he
was not given his prescribed medication and was not placed on a
renal failure diet as prescribed by his physician.
On April 15, 1996, Watson moved to file an amended
complaint seeking to add as defendants, William B. Hailey, M.D.;
Jane Doe #1, nurse; Max Woods, Deputy Jailer; Mark Hayden, Deputy
Jailer; Jane Doe #2, Deputy Jailer; Danny Orazine, McCracken
County Judge/Executive; Annette Lofton, Deputy Judge/Executive;
Dick R. McNeil, McCracken County Commissioner; Danny Cope,
McCracken County Commissioner; Glenn Dale Bradford, McCracken
County Commissioner; Glen Riley, McCracken County Commissioner;
and the McCracken County Fiscal Court.
After the trial court
denied his motion, Watson sought leave to file an interlocutory
appeal which was not ruled upon prior to the entry of summary
judgment.
Gill filed a motion for summary judgment on July 11,
1996, arguing that Watson failed to file his action within one
year of the specific instances alleged in the complaint and the
action was, therefore, time-barred.
He further argued that it
was undisputed that Watson received proper medical care.
Medical
log sheets initialed by Watson show that the proper medication
was received and Gill submitted an affidavit stating Watson had
been placed on a special diet.
Without notice, on July 19, 1996, the trial court
granted Gill's motion for summary judgment.
Watson maintains
that the failure to comply with Ky. R. Civ. P. (CR) 56.03 was
prejudicial because he had no opportunity to respond to Gill's
-2-
motion.
We agree and vacate and remand this case to the trial
court.
CR 56.03 provides, in part, that a motion for summary
judgment shall be served at least ten days before the time fixed
for the hearing.
Because summary judgment precludes a litigant's
right to trial, the notice and hearing requirements of CR 56.03
are mandatory unless waived.
Equitable Coal Sales, Inc. v.
Duncan Machinery, Ky. App., 649 S.W.2d 415 (1983).
Watson did
not waive the requirements of CR 56.03, and in fact, requested an
extension of time to respond.
Gill alleges that the failure to comply with CR 56.03
was harmless error and recites that it is reversible error only
if the non-moving party can show prejudice.
Hausladen, Ky., 828 S.W.2d 652 (1992).
Perkins v.
We are, as undoubtedly
was the trial court, skeptical about Watson's claim.
We must,
however, cautiously apply the harmless error rule to CR 56.03.
Although the trial courts must be free to respond expeditiously
to meritless complaints, they must also be sensitive to the
possibility of prison abuses and not dismiss legitimate
complaints based on the presentations of unskilled inmates.
Smith v. O'Dea, Ky. App., 939 S.W.2d 353, 356 (1997).
The delay
in complying with CR 56.03 is minimal when balanced against the
litigant's right to be provided the opportunity to present
evidence to support his claim.
Because Watson's claim is barred by the applicable
statute of limitations, Gill argues, regardless of the factual
-3-
accuracy of his claim, summary judgment was appropriate.
Gill
maintains that an action based on 42 USC ยง1983, which Watson's
claim appears to be, must be brought within one year of the date
of the injury.
(6th Cir. 1990).
Collard v. Board of Nursing, 896 F.2d 179, 189
Watson's complaint alleges specific instances
when he was deprived medical attention, the most recent being on
March 7, 1994.
With deference to the lack of artistry of its
drafter, the complaint also alleges that he was deprived medical
attention until the date of his transfer to the Eastern
Correctional Complex in October 1994.
We are not persuaded, that
given the opportunity, it would be impossible for Watson to
present evidence that the failure to provide medical care was in
the nature of a continuing wrong which continued until his
transfer to the Eastern Correctional Complex.
Neel v. Rehberg,
577 F.2d 262 (5th Cir. 1978).
In summary, we are vacating this case because we find
the procedural error to be so prejudicial that Watson must be
given an opportunity to respond to the summary judgment motion.
We are not, however, directing the trial court as to what action
to take following its compliance with the Civil Rules.
Watson also argues that the trial court erred when it
did not permit him to file an amended complaint naming additional
defendants.
CR 15.03 provides in relevant part:
(1) Whenever the claim or defense asserted
in the amended pleading arose out of the
conduct, transaction, or occurrence set forth
or attempted to be set forth in the original
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pleading, the amendment relates back to the
date of the original pleading.
(2) An amendment changing the party against
whom a claim is asserted relates back if the
condition of paragraph (1) is satisfied and,
within the period provided by law for
commencing the action against him, the party
to be brought in by amendment (a) has
received such notice of the institution of
the action that he will not be prejudiced in
maintaining his defense on the merits, and
(b) knew or should have know that, but for a
mistake concerning the identity of the proper
party, the action would have been brought
against him.
Watson did not file his motion until over one year
after his transfer from the McCracken County jail.
Any claim
against the proposed defendants was, therefore, outside the
applicable statute of limitations.
There is no evidence that any
of the proposed defendants had notice of the action within the
statutory time period or that there was a mistake in identity
precluding them from being named in the original action.
We find
no error in the trial court's refusal to permit the amendment.
The summary judgment is vacated and this case is
remanded for proceedings consistent with this opinion.
The
denial of Watson's motion to amend his complaint is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Raymond David Watson, Pro Se
West Liberty, Kentucky
Sun S. Choy
W. Kenneth Nevitt
Louisville, Kentucky
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