UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Fernando Ornelas

v. Civil No. 14-cv-394-LM Opinion No.

City of Manchester, et al

O R D E R

Fernando Ornelas brings suit against the City of

Manchester, the Manchester Police Department, Hillsborough

County, Elliot Hospital, the Hillsborough County of Department

of Corrections, and several employees of those entities alleging

claims arising out of serious injuries that he sustained while

in their custody.1 Elliot Hospital moves to dismiss Ornelas’s

medical injury claim against it, arguing that the claim is

barred by New Hampshire’s three-year statute of limitations on

personal actions. Ornelas objects.

Standard of Review

Under Rule 12(b)(6), the court must accept the factual

allegations in the complaint as true, construe reasonable

1 Ornelas has voluntarily dismissed his claims against Envision Healthcare, Inc., the Mental Health Center of Greater Manchester, Quentin Turnbull, Emily Yergeau, and David J. Mara. Doc. no. 93. inferences in the plaintiff’s favor, and “determine whether the

factual allegations in the plaintiff's complaint set forth a

plausible claim upon which relief may be granted.” Foley v.

Wells Fargo Bank, N.A.,

(1st Cir. 2014)

(citations and internal quotation marks omitted). A claim is

facially plausible “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal,

(2009). The court “may grant a motion

to dismiss based on a defendant's affirmative defense of a

statute of limitations ‘when the pleader's allegations leave no

doubt that an asserted claim is time-barred.’” DeGrandis v.

Children's Hosp. Boston,

, 16–17 (1st Cir. 2015)

(quoting LaChapelle v. Berkshire Life Ins. Co.,

(1st Cir. 1998)).

Background

I. Factual Background

On October 15, 2013, Ornelas was admitted to Elliot

Hospital’s emergency room to be evaluated for possible head

trauma following a car accident. Ornelas, who had a known

mental health condition, was disoriented. On his sister’s

request, mental health professionals evaluated Ornelas at the

hospital. Those professionals diagnosed Ornelas with bipolar

2 disorder and, with his sister’s consent, petitioned to have

Ornelas involuntarily committed in a psychiatric hospital under

state law.2 According to the petition completed by medical

personnel, Ornelas was “displaying paranoia, hallucinations and

mood swings, as a result of mental illness, sufficient to pose a

likelihood of danger to himself or others.” Doc. no. 63 at

¶ 28.

While waiting for a bed to become available at the

psychiatric hospital, Ornelas remained in the secured mental

health section of Elliot Hospital’s emergency room. While

there, Ornelas had an altercation with Lawrence Bolduc, a

hospital security guard. During that altercation, Ornelas

suffered severe head and facial injuries.

Because Bolduc wanted to press charges, a call was placed

to the Manchester Police Department. Officers from the

department decided to take Ornelas to the police station and

book him on charges for simple assault. Before being taken to

the police station, however, the police officers requested that

Elliot Hospital staff examine Ornelas to determine whether he

was stable enough to be discharged.

2 Two of the mental health professionals that examined Ornelas were Yergeau and Turnbull, both of whom worked for the Mental Health Center of Greater Manchester. As discussed above, Ornelas has voluntarily dismissed those defendants from this action.

3 An Elliot Hospital physician ordered a physical examination

and diagnostic studies for Ornelas. Based on those tests,

Elliot Hospital physicians determined that Ornelas had sustained

significant injuries but was nevertheless stable enough to be

discharged. The emergency room notes of the physician that

examined Ornelas stated that he was complaining of facial pain,

a headache, dental and jaw pain, and had a neck contusion. In

Ornelas’s discharge papers, Elliot Hospital staff members wrote

that officers should “[r]eturn to emergency department as soon

as possible if persistent vomiting, confusion, weakness to arms

or legs or any other concerns.” Doc. no. 63 at ¶ 53.

Ornelas was discharged into the Manchester Police

Department’s custody at around 10:45 p.m. on October 16, 2013.

After being booked, Ornelas was then placed in the custody of

the Hillsborough County Department of Corrections and was taken

to the Valley Street Jail. At the jail, Ornelas acted confused

and could be heard by guards hitting the cell door with his

forehead and running back and forth in his cell. After

unsuccessfully attempting to get Ornelas to calm down, officers

decided to forcibly extract Ornelas from his cell.

Three officers entered Ornelas’s cell and eventually

restrained him. During the extraction, Ornelas was slammed to

the concrete floor and hit his head on the toilet. Other

inmates heard Ornelas screaming and heard “sounds consistent

4 with a person being struck.” See doc. no. 63 at ¶ 142-44.

Following the extraction, Ornelas’s cell contained visible pools

of blood on the floor.

After being removed from his cell, Ornelas was placed in a

restraint chair. A nurse later noticed that Ornelas was

unresponsive and determined that he needed emergency medical

care. A staff member at the Valley Street Jail called an

ambulance to return Ornelas to Elliot Hospital. Emergency

personnel arrived at the Valley Street Jail at 9:10 a.m. on

October 17 and returned Ornelas to the Elliot Hospital emergency

room. Once at the hospital, physicians determined that Ornelas

had severely fractured his cervical vertebrae and was paralyzed.

II. Procedural Background

Ornelas brought suit on September 11, 2014, alleging claims

against several defendants, including claims for general

negligence and negligent infliction of emotional distress

against Elliot Hospital. Although Ornelas brought claims under

RSA 507-E, New Hampshire’s medical injury statute, against

several defendants he did not bring such a claim against Elliot

Hospital.3

3 R.S.A. 507-E sets forth the procedures for bringing an “action for medical injury,” which is defined as “any adverse, untoward or undesired consequences arising out of or sustained in the course of professional services rendered by a medical care provider.” The definition of a claim for medical injury

5 In support of his negligence claim, Ornelas alleged that

Elliot Hospital had failed to, among other things, provide

Ornelas proper psychological evaluations, “examine properly and

diagnose” Ornelas, and “properly evaluate and recommend the

appropriate discharge instructions and follow-up with the

patient.” Doc. no. 1 at ¶ 324. Ornelas’s original complaint

did not contain any specific allegation of wrongdoing or

negligence arising out of his second visit to Elliot Hospital.

Rather, Ornelas alleged that he had already suffered the

cervical fracture and was paralyzed when he returned to Elliot

Hospital. Id. at 45 (“Mr. Ornelas is returned to Elliot

Hospital paralyzed and unresponsive from Hillsborough County

Department of Corrections.”). Based on this theory, Ornelas

alleged that he “suffered an injury sufficient to cause a

fracture of his cervical spine” during either his first visit to

Elliot Hospital, his booking at the Manchester Police

Department, or his detention at Valley Street Jail. See id. at

¶¶ 208-09.

On January 26, 2017, Ornelas moved for leave to amend his

complaint. In that motion, Ornelas asserted that during

discovery he had obtained additional information demonstrating

includes claims resulting from the negligent provision of such services. Id.

6 that Ornelas was not paralyzed when he arrived at Elliot

Hospital, the second time, but rather had become paralyzed

there. Ornelas further asserted that based on that information,

it was his position that he “suffered a cervical fracture which

was unstable and which became progressively worse until the

fracture caused complete paralysis.” Doc. no. 62-1 at 10.

Because no defendants objected, the court granted Ornelas’s

motion for leave to amend.

Ornelas’s amended complaint, which was filed on February

10, 2017, contained new factual allegations about his care at

Elliot Hospital after he was returned to the emergency room.

Specifically, the amended complaint provided that:

Upon arrival at the Elliot Hospital, Mr. Ornelas did not have a neck brace on and none was placed until after he was paralyzed. According to the hospital records, his GCS test showed he was not paralyzed upon his arrival at the hospital but did become paralyzed while at the hospital. Thereafter, it was confirmed that Mr. Ornelas had a severe cervical fracture that had gone undiagnosed and untreated by all persons responsible for his care.

Doc. no 63 at ¶ 200. In addition to that factual allegation,

the amended complaint added a claim for medical injury under RSA

507-E against Elliot Hospital for providing negligent care

during both of Ornelas’s visits.

7 Discussion

Elliot Hospital moves to dismiss Ornelas’s medical injury

claim, arguing that Ornelas brought that claim after New

Hampshire’s three-year statute of limitations expired. In

response, Ornelas contends that his medical injury claim is

based on recently-discovered evidence and thus is not barred by

the statute of limitations. Ornelas further argues that the

medical injury claim is permissible because it relates back to

his original pleading.4

I. Statute of Limitations

R.S.A. 508:4, I, the applicable statute of limitations,

provides that “all personal actions, except actions for slander

or libel, may be brought only within 3 years of the act or

omission complained of.” Here, there is no dispute that the

acts causing Ornelas’s injuries occurred at some point on or

before October 17, 2013. Because Ornelas filed his amended

complaint in February 2017, he did not bring his claim within

the three years required under RSA 508:4, I.

4 Ornelas also contends that Elliot Hospital waived any statute of limitations objections to his medical injury claim when it failed to object to his motion to amend his complaint. That theory, however, is incorrect. Carlos v. York Cty., No. 1:15-CV-01994,

, at *2 (M.D. Pa. Apr. 27, 2016); Pessotti v. Eagle Mfg. Co.,

(D. Mass. 1990), aff'd,

(1st Cir. 1991).

8 Ornelas contends, however, that his medical injury claim is

not time-barred based on either the discovery rule exception to

the statute of limitations or the relation-back doctrine. In

response, Elliot Hospital contends that neither the discovery

rule nor the relation back doctrine applies here.

II. Discovery Rule

Under RSA 508:4, the limitations period is tolled until the

plaintiff discovers, or reasonably should have discovered, the

injury and its causal connection to the negligent or wrongful

act. Lamprey v. Britton Const., Inc.,

, 256–57

(2012). “[A] plaintiff need not be certain of this causal

connection; the possibility that it existed will suffice to

obviate the protections of the discovery rule.” Beane v. Dana

S. Beane & Co., P.C.,

(2010).

In this case, Ornelas presumably knew that he had been

treated in Elliot Hospital after being found unresponsive at the

Valley Street Jail. This fact likely alerted Ornelas to the

possibility that Elliot Hospital’s medical care was a cause of

his injuries. Nevertheless, the court need not determine

whether the discovery rule applies, an issue which could turn on

factual inquiries, because it concludes that Ornelas’s claim for

medical injury against Elliot Hospital relates back to his

original pleading.

9 III. Relation Back

Under the relation-back doctrine, a plaintiff may avoid the

preclusive effect of a statute of limitations if his complaint

relates back to a prior, timely-filed complaint. See Turner v.

United States,

(1st Cir. 2012); Connectu LLC v.

Zuckerberg,

(1st Cir. 2008). Under Federal Rule

of Civil Procedure 15(c), an amended complaint adding an additional

claim relates back to the original complaint if either “(A) the

law that provides the applicable statute of limitations allows

relation back” or “(B) the amendment asserts a claim or defense

that arose out of the conduct, transaction, or occurrence set out—

or attempted to be set out—in the original pleading.” Fed. R.

Civ. P. 15(c)(1)(A)-(B). The choice between these two provisions

is “a one-way ratchet, meaning that a party is entitled to invoke

the more permissive relation back rule.” See Coons v. Indus. Knife

Co.,

(1st Cir. 2010) (analyzing relation back of

an amendment adding new parties); Morel v. DaimlerChrysler AG,

(1st Cir. 2009).

Here, it is undisputed that Ornelas’s original complaint

was filed within the applicable statute of limitations. Ornelas

contends that his medical injury claim relates back to that

complaint under both New Hampshire and federal law.

10 A. Federal Rule

Under the conduct, transaction, or occurrence test, “[s]o

long as the original and amended petitions state claims that are

tied to a common core of operative facts, relation back will be

in order.” Frederick v. State of New Hampshire, No. 14-CV-403-

SM,

, at *7 (D.N.H. Aug. 16, 2016) (quoting Mayle

v. Felix,

(2005)). An amended complaint adding a

new claim after the statute of limitations has expired will not

relate back where the amendment “is so substantial that it

cannot be said that [the] defendant was given adequate notice of

the conduct, transaction, or occurrence that forms the basis of

the claim or defense.” O'Loughlin v. Nat’l R. Passenger Corp.,

(1st Cir. 1991) (internal quotation marks

omitted).

Accordingly, courts deny amendments “to assert a claim

which was not even suggested in the original complaint.”

If, however, the original complaint “gives fair notice of the

general fact situation out of which the claim or defense arises,

an amendment which merely makes more specific what has already

been alleged will relate back.”

(quoting 6A Wright, Miller

& Kane, Federal Practice and Procedure, § 1497 (2 ed. 1990)).

“This analysis is directed to conduct rather than causes of

action and new legal theories may relate back to the original

filing where . . . there is a shared basis in factual

11 circumstances.” Iconics, Inc. v. Massaro, No. 11-11526-DPW,

, at *5 (D. Mass. Jan. 15, 2016) (internal

quotation marks and citations omitted).

Ornelas asserts that the medical injury claim relates back

because his original complaint provided notice that he was

asserting such a claim against Elliot Hospital. In response,

Elliot Hospital contends that Ornelas’s medical injury claim

does not arise from the same conduct, transaction, or occurrence

because it is premised on different facts—Ornelas’s return to

its emergency room—than those asserted in the original

complaint.

1. Medical Injury Claims Arising Out of First Visit

Although Ornelas’s medical injury claim does rely on new

allegations concerning his return to Elliot Hospital, it also

expressly references the treatment he received during his first

visit. See doc. no. 63 at ¶ 346 (“With respect to Elliot

Hospital, it was responsible for the negligent care provided by

its servants, agents and/or employees including Ms. Yergeau and

Dr. Turnbull under theories of actual and/or apparent

agency.”)(emphasis added). In his original complaint, Ornelas

plainly alleged that Elliot Hospital’s treatment during his

first visit constituted medical negligence. For example,

Ornelas alleged that Elliot Hospital failed to properly examine

12 and diagnose him, failed to provide appropriate psychological

care, and failed to properly evaluate him before his discharge.

Doc. no. 1 at ¶ 324. Therefore, regardless of whether Ornelas

asserted a formal claim under RSA 507-E, his original complaint

in substance set out or attempted to set out a transaction or

occurrence based on Elliot Hospital’s alleged negligent care.

In fact, Elliot Hospital has recognized from the outset of

this litigation that Ornelas’s claims against it included claims

for medical injury. As Ornelas points out, Elliot Hospital’s

answer to the original complaint included an affirmative defense

in which it asserted that the claims against Elliot Hospital

could not proceed “before a N.H. Medical Malpractice Screening

Panel hearing occurs, as Plaintiff’s claims against Elliot

Hospital include claims for ‘medical injury.’” Doc. no. 48 at

44. Accordingly, Elliot Hospital cannot now be surprised that

Ornelas has asserted a medical injury claim against it.

Therefore, to the extent Ornelas’s medical injury claim is

based on Elliot Hospital’s treatment during his first visit, it

relates back to the original complaint.

2. Medical Injury Claims Arising Out of Second Visit

Ornelas’s amended complaint also asserts a medical injury

claim based on new allegations that Elliot Hospital failed to

properly stabilize his neck upon his return to its emergency

13 room. Ornelas contends that these new allegations relate back

because they fall within the general fact pattern alleged in his

original pleading. In response, Elliot Hospital argues that the

allegations arise from a different occurrence because they rely

on facts that differ in both time and type than those alleged in

the original pleading.

In support, Elliot Hospital relies on Mayle v. Felix,

(2005). In Mayle, the plaintiff filed a petition for a

writ of habeas corpus, alleging a Sixth Amendment claim based on

the government’s introduction of out-of-court testimony during

his criminal trial.

. After the relevant statute of

limitations expired, the plaintiff amended his petition to

allege a Fifth Amendment claim based on the government’s

introduction of statements that he made during a pretrial,

police interrogation.

. On appeal, the Supreme

Court held that the amended petition did not relate back to the

original petition because the new Fifth Amendment claim arose

from a different occurrence or transaction.

. In

doing so, the court concluded that the plaintiff’s new claim was

not tied to a “common core of operative facts” because the

essential predicate of that claim, the police interrogation,

depended on facts that differed in type and time from those

alleged in the original complaint.

.

14 Elliot Hospital contends that Mayle bars relation back here

because Ornelas has alleged different conduct as the cause of

his paralysis. The court disagrees. As an initial matter, the

First Circuit has suggested that Mayle sets forth a more

stringent standard for relation back in habeas petitions.

United States v. Ciampi,

(1st Cir. 2005) (“[I]n

the habeas corpus context, the Rule 15 ‘relation back’ provision

is to be strictly construed, in light of ‘Congress' decision to

expedite collateral attacks by placing stringent time

restrictions on [them].’” (quoting Mayle,

)); see

also Turner,

.5 More importantly, however, Mayle

itself does not hold that each distinct alleged act of

wrongdoing underlying a claim is a separate transaction or

occurrence for Rule 15 purposes.

That is evident from the Mayle court’s conclusion that its

decision does not conflict with Tiller v. Atlantic Coast Line R.

Co.,

(1945). In Tiller, a railroad car

struck and killed a railroad worker, whose wife sued on his

behalf.

. She initially alleged several negligent

acts and, after the statute of limitations had expired, amended

her complaint to allege a different theory of negligence based

5 But see Anderson v. Bondex Int'l, Inc.,

(3d Cir. 2014) (concluding that “the Supreme Court's analysis in Mayle was consistent with—not more exacting than—its application of Rule 15(c) in other contexts”).

15 on the railroad’s failure to equip the locomotive with a rear

light. Id. at 575-77, 581. The Tiller court held that the new

claim related back to the original pleading, concluding that

both claims “related to the same general conduct, transaction

and occurrence which involved the death of the deceased.” Id.

at 581. The court further reasoned that “[t]here is no reason

to apply a statute of limitations when, as here, the respondent

has had notice from the beginning that petitioner was trying to

enforce a claim against it because of the events leading up to

the death of the deceased.” Id.

The Mayle Court explained that although the amended

pleading in Tiller “invoked a legal theory not suggested by the

original complaint and relied on facts not originally asserted,”

it related back to the original pleading because there “was but

one episode-in-suit, a worker’s death attributed from the start

to the railroad’s failure to provide its employee with a

reasonably safe place to work.” Mayle,

. The

Mayle court further explained that unlike the plaintiff in its

case, the plaintiff in Tiller “based her complaint on a single

‘occurrence,’ an accident resulting in her husband’s death.”

Based on similar reasoning, courts have concluded that new

factual allegations raised in an amended complaint will relate

back when they are closely tied to the general factual situation

16 alleged in the original complaint. See Anderson v. PAR

Electrical Contractors, Inc.,

(D. Kan.

2017) (finding relation back where new factual allegations bore

“more than an ‘incidental relationship’” and occurred nine days

after events alleged in original complaint); Hernandez v. City

of Chicago, No. 16 C 8875,

, at *1 (N.D. Ill.

Nov. 28, 2016) (“An amendment relates back if it ‘alleges events

close in time and subject matter to those previously alleged,

and if they led to the same injury.’”) (quoting In re Safeco

Ins. Co. of Am.,

(7th Cir. 2009)); Burnside v.

Walters, No. 09-CV-2727-JDT-TMP,

, at *4 (W.D.

Tenn. Aug. 6, 2015) (“An amendment relates back if the new

claims constitute added events leading up to the same injury or

an added theory of liability for the same occurrence.”)

(internal quotation marks omitted), report and recommendation

adopted, No. 09-2727-JDT-TMP,

(W.D. Tenn. Sept.

23, 2015); Vigilant Ins. Co. v. Servco Oil, Inc., No. 3:09-CV-

829 (JCH),

, at *4 (D. Conn. July 7, 2010)

(finding relation back because like Tiller, plaintiff “only

altered its underlying theory of how [defendant’s] negligence

caused the oil leak on the Serinos' property.”).

In this case, the occurrence at issue is the fracture of

Ornelas’s neck, the resulting paralysis, and the events that led

17 to those conditions. In his original complaint, Ornelas alleged

that Elliot Hospital’s negligence, including its negligent

provision of medical care, was in part responsible for his

injuries. Just as in Tiller, Ornelas now alleges other conduct

as an alternative cause of his injuries.

Those allegations relates back to the original complaint

because they are tied to the common core of operative facts

alleged therein. The new allegations concern the same injuries

and involve the same type of conduct by Elliot Hospital—the

negligent provision of medical care—that was alleged in the

original complaint. Moreover, the new allegations share a close

temporal proximity to the facts originally alleged. Ornelas’s

return to Elliot Hospital occurred within 24 hours of his

initial discharge from that institution and nearly

contemporaneously with the other allegations of misconduct

alleged in the original complaint. Given these facts and that

the original complaint gave notice that Ornelas was returned to

and treated in its emergency room, Elliot Hospital cannot now

claim that it was unaware of the general fact situation from

which these new allegations arise.

Accordingly, the RSA 507-E claims alleged against Elliot

Hospital relate back to the original pleading in this action.

18 B. New Hampshire Rule

Because the court concludes that the medical injury claim

relates back under the federal test it need not assess whether

it relates back under New Hampshire’s standard.

Conclusion

For the foregoing reasons, Elliot Hospital’s motion to

dismiss (doc. no. 70) is denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

June 5, 2017

cc: All counsel of record.

19