Judges: PerCuriam
Filed: Dec. 17, 2014
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted November 26, 2014* Decided December 17, 2014 Before ANN CLAIRE WILLIAMS, Circuit Judge DIANE S. SYKES, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 14-2485 Appeal from the CLARENCE GIVENS, United States District Court for the Plaintiff-Appellant, Western District of Wisconsin. v. No. 13-cv-848-wmc KENNETH LUEDTKE, et a
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted November 26, 2014* Decided December 17, 2014 Before ANN CLAIRE WILLIAMS, Circuit Judge DIANE S. SYKES, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 14-2485 Appeal from the CLARENCE GIVENS, United States District Court for the Plaintiff-Appellant, Western District of Wisconsin. v. No. 13-cv-848-wmc KENNETH LUEDTKE, et al..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 26, 2014*
Decided December 17, 2014
Before
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14‐2485
Appeal from the
CLARENCE GIVENS, United States District Court for the
Plaintiff‐Appellant, Western District of Wisconsin.
v. No. 13‐cv‐848‐wmc
KENNETH LUEDTKE, et al., William M. Conley,
Defendants‐Appellees. Chief Judge.
O R D E R
Clarence Givens, a Wisconsin prisoner, appeals from the dismissal of his
civil‐rights suit against a prison dentist and two administrators in the prison’s health‐
The defendants were not served with process in the district court and are not
*
participating in this appeal. After examining the appellant’s brief and the record, we
have concluded that the case is appropriate for summary disposition. See FED. R. APP.
P. 34(a)(2)(C).
No. 14‐2485 Page 2
services unit. He alleges that the defendants unconstitutionally delayed dental care for
two months from January 2007 to March 2007, in violation of the Eighth Amendment.
Because Givens’s suit is untimely, we affirm.
For the purpose of this appeal, we assume the truth of the facts alleged in
Givens’s complaint and any consistent elaboration of those facts in his appellate brief.
See Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 555 (7th Cir. 2012). After prison dentist
Kenneth Luedtke performed a root canal on one of Givens’s teeth on January 19, 2007,
Givens sought additional care. The next week he again saw Luedtke, who evaluated a
lesion on the roof of Givens’s mouth and told him that he needed to see an oral surgeon
for it. Three days later Givens requested emergency dental services with Luedtke for his
mouth pain, and the next day Luedtke prescribed anti‐inflammatories for Givens. Three
days after that, Givens sent another emergency request to Luedtke, reporting that he was
still in extreme pain. A week later, Luedtke extracted Givens’s problematic tooth and
noted that the lesion in Givens’s mouth was healing. After a few more days, Givens filed
with Luedtke yet another emergency request for treatment, this time stating that another
“knot” had formed in his mouth and was causing pain. He also reminded Luedtke that
he needed to send Givens to an oral surgeon to treat his mouth lesion.
Givens’s mouth was not examined again until a month later. At that time
(March 8, 2007), a bone was protruding through a hole in his mouth and was gushing
pus and blood. Five days after this injury, Givens saw an ear, nose, and throat doctor at
Waupun Memorial Hospital. The specialist was unable to diagnose Givens’s condition
immediately. Two weeks later Givens saw another specialist who performed a biopsy
and stated that the injury was likely caused by osteomyelitis, a bone infection,
see OSTEOMYELITIS, MAYO CLINIC, http://www.mayoclinic.org/diseases‐conditions/
osteomyelitis/basics/definition/con‐20025518 (last visited Dec. 1, 2014), for which Givens
was prescribed penicillin. This diagnosis was later confirmed. Almost two years later, in
January 2009, another dentist told Givens that Dr. Luedtke caused the bone infection by
using unsanitary tools during the root canal.
As a prelude to this federal lawsuit, Givens filed an administrative “inmate
complaint.” He asserted first that Dr. Luedtke caused the bone infection and second that
Givens experienced severe, unnecessary pain because medical staff did not immediately
send him to an oral surgeon in January 2007. The complaint was dismissed 172 days
later; Givens then filed what he calls a second complaint (it may have been an
No. 14‐2485 Page 3
administrative appeal, but we don’t know because it is not attached), which was
resolved against him 67 days later.
Six years and eight months after the injury of March 8, 2007, Givens placed in the
prison mail system on November 7, 2013, this lawsuit under 42 U.S.C. § 1983 alleging
Eighth Amendment violations. The complaint asserts, first, that Dr. Luedtke is liable for
the bone infection and, second, that he and other medical staff are liable for unjustifiably
delaying from January to March of 2007 referral to an oral surgeon. Givens pursues only
this second claim on appeal.
The district court screened the complaint and dismissed Givens’s suit with
prejudice. See 28 U.S.C. § 1915A. The court concluded that both claims were barred by
Wisconsin’s six‐year statute of limitations applicable to § 1983 actions, and alternatively,
that Dr. Luedtke was not deliberately indifferent to Givens’s dental needs.
On appeal Givens maintains that the defendants unconstitutionally delayed
treating his mouth for two months in January 2007. He insists that his claim is timely for
two reasons. First, he contends that under Devbrow v. Kalu, 705 F.3d 765, 769–70 (7th Cir.
2013), his claim did not accrue until he learned in January 2009 that Luedtke mishandled
the root canal in January 2007. Second, he argues that the statute of limitations was tolled
while he exhausted administrative remedies over a total of 239 days.
We begin by addressing when Givens’s claim accrued. His claim accrued when he
“kn[e]w[] of his physical injury and its cause … even if the full extent or severity of the
injury is not yet known.” Id. at 768; see Wallace v. Kato, 549 U.S. 384, 388 (2007). As early as
January 2007, Givens knew that he had a painful mouth lesion that required a specialist.
And by March 8, 2007, Givens knew that he had another serious injury. That is when his
mouth was spewing blood and pus, which led (five days later) to the specialist’s
treatment that Givens had been seeking for the prior two months. Devbrow does not alter
this accrual analysis. In that case, an inmate alleged that prison doctors delayed treating
his prostate cancer because they did not order a biopsy until after the cancer had
metastasized. 705 F.3d at 766. We concluded that his claim could not have accrued until
he received his cancer diagnosis because he could not have known of the injury any
sooner. Id. at 770. But here, by March 8, 2007, Givens knew that his mouth was seriously
damaged after a two‐month delay of a specialist’s treatment.
Givens also knew before March 8, 2007, that Dr. Luedtke and his staff caused the
delay in sending him to an oral surgeon to examine his mouth. According to his
allegations, in February 2007 he sent to Luedtke his emergency request for treatment. In
No. 14‐2485 Page 4
it he explicitly faulted Dr. Luedtke for not sending him to an oral surgeon to examine his
mouth, as Luedtke himself had suggested in January. Givens replies that he learned only
in January 2009 that Dr. Luedtke caused his mouth infection. But this knowledge is
irrelevant to his claim that Dr. Luedtke and his staff unconstitutionally delayed sending
him to an oral surgeon for two months in January 2007. Givens knew of that injury (the
two‐month delay) and its cause (Dr. Luedtke’s disregard of Givens’s request for a
specialist) by, at the latest, March 8, 2007.
With the accrual date established as March 8, 2007, we turn to whether Givens’s
claim is timely under Wisconsin’s six‐year personal rights statute of limitations, see WIS.
STAT. § 893.53, the residual statute for personal‐injury actions, which we have adopted
for use in § 1983 actions in that state, see Malone v. Corr. Corp. of Am., 553 F.3d 540, 542 (7th
Cir. 2009); Gray v. Lacke, 885 F.2d 399, 407–09 (7th Cir. 1989). Six years from March 8,
2007, is March 8, 2013. Givens correctly notes that his claim was tolled while he
exhausted administrative remedies. See WIS. STAT. § 893.23; Johnson v. Rivera, 272 F.3d
519, 521–22 (7th Cir. 2001). We will assume that his two administrative complaints were
not duplicative and that the second was an internal appeal of the first. But even if we add
onto March 8, 2007, the 239 days that Givens asserts was spent exhausting
administrative remedies, the limitations period would have expired on November 2,
2013—nine days before Givens placed his complaint in the prison mail system. Thus, as
the district court correctly ruled, Givens’s claim is time‐barred.
AFFIRMED.