Pamela H. Lett v. Zarife Sahenk, M.d., Ph.d.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0240n.06
Filed: April 4, 2006
Nos. 05-3452/3453
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PAMELA H. LETT,
Plaintiff-Appellant,
v.
ZARIFE SAHENK, M.D., PH.D.
Defendant-Appellee.
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
OHIO
Before: SILER, BATCHELDER and GIBBONS, Circuit Judges.
PER CURIAM. Plaintiff Pamela B. Lett sued defendant Dr. Zarife Sahenk pursuant to 42
U.S.C. § 1983, alleging that Sahenk violated her substantive due process rights by failing to obtain
Lett’s informed consent before performing a non-therapeutic sural nerve biopsy for a medical
research study. On September 27, 2002, the district court denied Sahenk’s motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6), finding that Lett filed the claim within the relevant statutory
limitations period. Sahenk later filed a motion for summary judgment pursuant to Fed. R. Civ. P.
56(c). The court granted the motion on February 23, 2005, holding that Lett’s allegations and
evidence did not permit a finding that defendant had violated her constitutional rights, or in the
alternative, that Sahenk was entitled to qualified immunity for her actions. The parties cross-
appealed.
Sahenk alleges that the district court wrongly denied her motion to dismiss Lett’s complaint.

-- 1 of 3 --

Lett v. Sahenk, Nos. 04-3452/3453
Page 2
We review a district court order denying a motion to dismiss de novo. Trzebuckowski v. City of
Cleveland, 319 F.3d 853, 855 (6th Cir. 2003). The district court determined that Lett brought her
§ 1983 claim in federal court outside of the applicable two year limitations period set forth in Ohio
Rev. Code § 2305.10. See Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989) (en banc)
(holding that § 2305.10 establishes the applicable limitations period in Ohio). However, the court
determined that Lett’s claim was covered by the Ohio savings statute, Ohio Rev. Code § 2305.19,
which allows plaintiffs to refile claims within one year of the termination of a prior claim “otherwise
than upon the merits.” See Harris v. City of Canton, 725 F.2d 371, 375 (6th Cir. 1984) (citing Cero
Realty Corp. v. Am. Mfrs. Mut. Ins. Co., 167 N.E.2d 774, 777 (Ohio 1960)), rev’d on other grounds,
489 U.S. 933 (1989). The district court held that Lett’s prior state action against Sahenk and other
defendants was sufficient to save the federal cause of action. Sahenk argues that this determination
was incorrect.
Lett argues that the district court wrongly granted summary judgment for Sahenk on the
merits of her claim. We review a district court’s grant of summary judgment de novo. TriHealth,
Inc. v. Bd. of Comm’rs, Hamilton County, 430 F.3d 783, 787 (6th Cir. 2005). Lett alleges that her
§ 1983 claim is valid because Sahenk’s conduct violated Lett’s substantive due process right to
bodily integrity. The district court held that Lett failed to allege or produce evidence of conduct that
“shocks the conscience” and that the cases cited by Lett as precedent were distinguishable from the
facts of this case. Further, the court held that even if Lett had alleged such conduct, Sahenk would
be entitled to qualified immunity for her actions because she did not violate “clearly established
statutory or constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).

-- 2 of 3 --

Lett v. Sahenk, Nos. 04-3452/3453
Page 3
After reviewing the record, the parties’ briefs and the applicable law, we determine that a
panel opinion further addressing the issues raised would serve no jurisprudential purpose.
Therefore, on the grounds identified by the district court, we affirm both the district court’s
September 27, 2002, denial of Sahenk’s motion to dismiss Lett’s complaint and its February 23,
2005, grant of summary judgment for Sahenk.
AFFIRMED.

-- 3 of 3 --