UNITE STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30617
MARK ANTHONY HARRIS,
Plaintiff-Appellant,
VERSUS
MICHAEL HEGMANN, JANET BOYD, and ROSE JAMES,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
December 8, 1999
Before KING, Chief Judge; STEWART, Circuit Judge; and ROSENTHAL,
District Judge.*
PER CURIAM:
Mark Anthony Harris, a Louisiana state prisoner, sued
three prison medical staff members under 42 U.S.C. § 1983, alleging
deliberate indifference to his serious medical needs in violation
of the Eighth Amendment. Harris exhausted the administrative
procedures available within the state prison system, then filed
suit in state court, and finally filed his federal suit. Because
Harris did not file this federal lawsuit until approximately 17
months after the events at issue, the district court concluded that
Harris’s claims were barred by the one-year prescription period
*
District Judge of the Southern District of Texas,
sitting by designation.
applicable to federal civil rights suits filed in Louisiana. We
conclude that Harris’s exhaustion of his administrative remedies
tolled the prescriptive period and that Harris’s federal claims
were timely filed. Accordingly, we REVERSE and REMAND for further
proceedings.
I. BACKGROUND
On October 7, 1996, appellant Mark Anthony Harris, an
inmate at the Hunt Correctional Center in St. Gabriel, Louisiana,1
received medical treatment for a broken jaw. On October 26, 1996,
doctors at the oral surgery clinic of the Earl K. Long Hospital
removed the retaining wires used to set Harris’s jaw. Some thirty
to forty minutes later, as Harris waited in an outside holding
cell, his jaw shifted and “fell out of place,” causing him
excruciating pain. Harris told the corrections officer supervising
him that his jaw had “slipped” and asked to be taken back into the
oral surgery clinic to have the jaw reset. The officer replied
that he could not take Harris back inside the clinic. The officer
instead tried to reach the clinic staff by telephone, but was
unsuccessful. Harris had to return to the Hunt Correctional Center
without treatment.
At the infirmary of the Correctional Center, Harris told
Rose James, a licensed practical nurse, that his jaw had “fallen
out of place,” that he was in great pain, and that he required
emergency medical attention. James told Harris that he did not
1
Harris is now a prisoner at the Allen Correctional Center
in Kinder, Louisiana.
2
need to see the prison doctor. Instead, James made an appointment
for Harris to see a dentist on a non-emergency basis. Harris
complained, without result.
The following morning, October 23, 1996, Harris
complained to Janet Boyd, a registered nurse, about his jaw, his
pain, and his need for immediate treatment. Boyd remarked that
Harris already had an appointment to see the dentist and left.
That afternoon, Harris was able to see Dr. Michael Hegmann, who was
making his weekly rounds at the Correctional Center. Harris
explained his medical problem to Dr. Hegmann. The doctor performed
a cursory inspection of Harris’s mouth, told an accompanying doctor
that Harris could be discharged from the clinic, and left. That
evening, Harris persuaded another nurse to log his complaint and
send a request for immediate treatment to the dental department.
The following afternoon, October 24, 1996, Harris was
discharged from the infirmary. Dr. Hegmann’s discharge orders
called for Harris to return to a working cell block and eat a
normal diet. Dr. Hegmann’s discharge orders overrode the hospital
surgeon’s order, issued two days earlier, that Harris remain on a
liquid diet for one week. Harris filed a written administrative
complaint.
Harris was scheduled for a routine follow-up appointment
at the oral surgery clinic of the hospital on October 30, 1996. No
medical professional saw Harris between the examination by Dr.
Hegmann on October 23, 1996, and his return visit to the hospital
on October 30, 1996. Harris alleges that during that week, he
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suffered constant and extreme pain, magnified by his struggle to
eat solid food with a broken jaw. When Harris returned to the
hospital’s oral surgery clinic for the follow-up appointment, an x-
ray quickly verified that Harris’s jaw had rebroken. Clinic staff
reset and rewired the jaw the same day.
The Louisiana prison system has established a three-step
administrative review procedure for prisoner complaints. Under
this system, Harris’s administrative complaint was first reviewed
by the prison hospital administrator, then by the warden of the
Correctional Center, and finally by the Secretary of Corrections
for the State. At each level of review, Harris was denied relief.
The Louisiana Department of Corrections issued the final denial of
Harris’s administrative complaint on July 14, 1997.
Officials of the Louisiana Department of Corrections told
Harris that he must appeal the denial of his administrative
complaint in the Louisiana state courts before filing a federal
civil rights lawsuit. Following this instruction, Harris filed
suit in the 19th Judicial District Court of Louisiana on June 30,
1997. On February 5, 1998, the state court dismissed Harris’s
suit. On March 25, 1998, Harris filed this suit in the federal
district court for the Middle District of Louisiana, Baton Rouge
Division. Proceeding pro se and in forma pauperis, Harris asserted
section 1983 claims against Hegmann, James, and Boyd for their
refusals to provide medical attention and treatment between October
22 and October 30, 1996.
4
On April 8, 1998, the magistrate judge recommended
dismissal of Harris’s complaint as untimely. The magistrate judge
concluded that Harris’s claims were prescribed by the one-year
limitation period established by the Louisiana Civil Code, Article
3536, because Harris did not file his federal suit for 17 months
after the challenged acts occurred. The magistrate judge
recommended that Harris’s complaint be dismissed under 28 U.S.C. §
1915(e)(2)(B)(i), as lacking an arguable basis in law, and under 28
U.S.C. § 1915(e)(2)(B)(ii), as failing to state a claim upon which
relief could be granted.
In response to the magistrate judge’s report and
recommendation, Harris wrote to the district court and explained
that he had waited to file his federal suit until he had exhausted
his prison administrative remedies and his state law remedies.
Harris argued that he should be allowed an extension of time in
order to permit his case to go forward. The district court treated
Harris’s letter as an objection to the magistrate judge’s report
and recommendations, adopted the magistrate judge’s report and
recommendation, and, without requiring the defendants to answer,
dismissed Harris’s federal claims with prejudice on May 21, 1998.
Harris filed a timely notice of appeal. Before this
court, Harris renews his contention that he timely filed his
federal suit because prescription was equitably tolled while his
5
prison administrative claims were pending in the Louisiana
Department of Corrections. We agree.2
II. THE STANDARD OF REVIEW
The Prison Litigation Reform Act (PLRA) of 1995, Pub. L.
No. 104-134, 110 Stat. 1321, amended 28 U.S.C. § 1915(e)(2)(B)(i)
and (ii) to require a district court “to dismiss [an] in forma
pauperis (IFP) prisoner civil rights suit[] if the court determines
that the action is frivolous or malicious or does not state a claim
upon which relief may be granted.” Black v. Warren, 134 F.3d 732,
733 (5th Cir. 1998) (citing Mitchell v. Farcass, 112 F.3d 1483,
1489-90 (11th Cir. 1997)). This court reviews dismissals based on
section 1915(e)(2)(B)(ii) under the same de novo standard of review
applicable to dismissals made pursuant to Federal Rule of Civil
Procedure 12(b)(6). See Black, 134 F.3d at 734. “A district
court’s dismissal of a complaint under this subsection may be
upheld only if, taking the plaintiff’s allegations as true, it
appears that no relief could be granted based on the plaintiff’s
alleged facts.” Bass v. Parkwood Hosp., 180 F.3d 234, 240 (5th
Cir. 1999) (citing Bradley v. Puckett, 157 F.3d 1022, 1025 (5th
Cir. 1998)).
Under section 1915(e)(2)(B)(i), a district court may
dismiss as frivolous a prisoner’s IFP complaint if it lacks any
2
Harris argues that tolling applies both to the time during
which he pursued his administrative remedies and to the time during
which he pursued his state court lawsuit. Because Harris filed his
federal complaint within one year of the final action on his
administrative complaint, we need not reach the question of whether
the pendency of the state lawsuit tolled the prescriptive period.
6
arguable basis in law or fact. See Neitzke v. Williams, 490 U.S.
25, 319-325 (1989); Harper v. Showers, 174 F.3d 716, 718 (5th Cir.
1999); McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998).
“A complaint lacks an arguable basis in law if it is based on an
indisputably meritless legal theory, such as if the complaint
alleges violation of a legal interest which clearly does not
exist.” Harper, 174 F.3d at 718 (quoting Davis v. Scott, 157 F.3d
1003, 1005 (5th Cir. 1998); see also Spicer v. Collins, 9 F.
Supp.2d 673, 687 (E.D. Tex. 1998) (dismissing an inmate’s claim
that he was denied one meal and forced to work on an empty
stomach). A complaint is factually frivolous when “the facts
alleged are ‘fantastic or delusional scenarios’ or the legal theory
upon which a complaint relies is ‘indisputably meritless.’” Eason
v. Thaler, 14 F.3d 8,9 n.5 (5th Cir. 1994) (quoting Neitzke, 490
U.S. at 327-28).
In an action under section 1915, a district court may
raise the defense of limitations sua sponte. See Gartrell v.
Gaylor, 981 F.2d 254, 256 (5th Cir. 1993) (citing Ali v. Higgs, 892
F.2d 438, 440 (5th Cir. 1990); Burrell v. Newsome, 883 F.2d 416,
418 (5th Cir. 1989)). Dismissal is appropriate if it is clear from
the face of the complaint that the claims asserted are barred by
the applicable statute of limitations. See id.
III. THE LIMITATIONS ANALYSIS
Federal courts borrow state statutes of limitations to
govern claims brought under section 1983. See Burge v. Parish of
St. Tammany, 996 F.2d 786, 788 (5th Cir. 1993) (citing Hardin v.
7
Straub, 490 U.S. 536, 538-39 (1989); Jackson v. Johnson, 950 F.2d
263, 265 (5th Cir.1992)). Although federal courts look to federal
law to determine when a civil rights action accrues, see Jackson v.
Johnson, 950 F.2d at 265, state law supplies the applicable
limitations period and tolling provisions. See Gartrell, 981 F.2d
at 257 (“In applying the forum state’s statute of limitations, the
federal court should also give effect to any applicable tolling
provisions.”). Under federal law, a section 1983 action generally
accrues when a plaintiff “knows or has reason to know of the injury
which is the basis of the action.” Jackson, 950 F.2d at 265
(internal quotation marks omitted) (quoting Burrell v. Newsome, 883
F.2d 416, 418 (5th Cir.1989)).
Without tolling, Harris’s suit is clearly prescribed.
Harris’s allegations establish that he knew in October 1996 of the
refusal to provide him medical care and the identity of the persons
he believed responsible for the refusal. The question is whether
the pendency of Harris’s state administrative proceedings tolled
the prescriptive period.
Because Harris is a state prisoner proceeding in forma
pauperis, his action is governed by 42 U.S.C. § 1997e. The PLRA,
which took effect on April 26, 1996, significantly amended section
1997e. Under the pre-PLRA version of section 1997e, federal
district courts had discretionary authority to require a prisoner
to exhaust administrative remedies inside the prison system when
“appropriate and in the interests of justice,” 42 U.S.C. §
1997e(a)(1994), and when the administrative remedies provided were
8
“plain, speedy, and effective.” The PLRA removed this discretion.
Section 1997e now provides that:
[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative
remedies as are available are exhausted.
42 U.S.C. § 1997e(a) (West Supp. 1999).
Section 1997e clearly requires a state prisoner to
exhaust available administrative remedies before filing a section
1983 suit and precludes him from filing suit while the
administrative complaint is pending. Wendell v. Asher, 162 F.3d
887, 890 (5th Cir. 1998). “Congress unambiguously expressed its
intent that exhaustion be generally imposed as a threshold
requirement in prisoner cases.” Id.; see also Underwood v. Wilson,
151 F.3d 292, 296 (5th Cir. 1998).3
This court has held that “[a] district court should not
require exhaustion under section 1997e if the prisoner seeks only
monetary damages and the prison grievance system does not afford
such a remedy.” Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir. 1998)
(internal quotation marks omitted) (quoting Marsh v. Jones, 53 F.3d
707, 710 (5th Cir. 1995). The Louisiana Legislature enacted LA.
REV. STAT. ANN. § 15:1171-79 (West Supp. 1999) as an express
authorization for the Louisiana Department of Public Safety and
Corrections (LDPSC) to promulgate administrative complaint
procedures for the prison system. See Marsh v. Jones, 53 F.3d at
711. Since 1989, the statute has explicitly granted authority to
3
This court has previously held that the exhaustion
requirement under amended section 1997e is not jurisdictional. See
Underwood, 151 F.3d at 293-95. “Rather, the amended statute
imposes a requirement, rather like a statute of limitations, that
may be subject to certain defenses such as waiver, estoppel, or
equitable tolling.” Wendell, 162 F.3d at 890 (citing Underwood,
151 F.3d at 294-95).
9
the LDPSC to award monetary damages to inmates who prevail in their
administrative complaints. Harris invoked an administrative
procedure under which he could, and did, seek monetary damages as
a remedy. Whitley v. Hunt is therefore not applicable. See Marsh
v. Jones, 53 F.3d at 711 (citing Gibson v. Barnes, 597 So.2d 176,
177 (La. Ct. App. 1992).4 In this federal civil rights suit,
Harris seeks monetary damages from members of the prison medical
staff for their alleged deliberate indifference to his serious
medical needs. Under the PLRA and this court’s precedent, Harris
had to exhaust the administrative remedies the Louisiana
Legislature established for the prison system. See Wendell, 162
F.3d at 892 (affirming the “district court’s dismissal of
[plaintiff’s] claims for failure to exhaust administrative remedies
prior to filing suit as required by 42 U.S.C.A. § 1997e”).
In Rodriguez v. Holmes, 963 F.2d 799 (5th Cir. 1992),a
prisoner civil rights suit filed in Texas, this court held that the
Texas statute of limitations was tolled while the plaintiff
exhausted his available state administrative remedies. Louisiana
law similarly recognizes required exhaustion of administrative
remedies as a ground to toll prescription. The Louisiana Civil
Code, Article 3492, establishes a one-year liberative prescription
4
The courts of appeals have divided over the question of
whether a prisoner seeking solely monetary damages has a duty to
exhaust when the state prison system does not provide monetary
damages as a remedy. This court and the Ninth and Tenth Circuits
do not require exhaustion when monetary damages are sought but such
a remedy is unavailable. See Whitley v. Hunt, 158 F.3d at 886;
Lunsford v. Jumao-As, 155 F.3d 1178, 1179 (9th Cir.1998); Garrett
v. Hawk, 127 F.3d 1263, 1267 (10th Cir.1997). The Sixth, Seventh,
and Eleventh Circuits do require exhaustion. See Lavista v.
Beeler, 1999 WL 970372 at *3 (6th Cir. 1999); Perez v. Wisconsin
Dep’t of Corrections, 182 F.3d 532, 537 (7th Cir. 1999); Alexander
v. Hawk, 159 F.3d 1321, 1326-28 (11th Cir.1998). Because Louisiana
has provided for monetary remedies in its administrative review
system, the circuit split is not relevant to the disposition of
this appeal.
10
for civil actions sounding in tort. See LA. CIV. CODE ANN. art. 3492
(1994); cf. Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir. 1989)
(affirming an application of article 3492 to a section 1983 claim).
“Prescription runs against all persons unless an exception is
established by legislation.” LA. CIV. CODE ANN art. 3467 (1994).
Louisiana courts do not apply prescription against a party who is
legally unable to act.5 See Burge, 996 F.2d at 788 (5th Cir. 1993)
(citing Plaquemines Parish Comm’n Council v. Delta Dev. Co., 502
So.2d 1034, 1055-56 (La. 1987)). “This doctrine, probably founded
on the principles of equity, justice, fairness, or even natural law
suspends the running of prescription when the ‘plaintiff was
effectually prevented from enforcing his rights for reasons
external to his own will.’” FDIC v. Caplan, 874 F. Supp. 741, 745
(W.D. La. 1995) (quoting Wimberly v. Gatch, 635 So.2d 206, 211 (La.
1994)). Once a plaintiff becomes legally capable of bringing an
action to vindicate or enforce his rights, prescription resumes.
See LA. CIV. CODE ANN. art. 3472 (1994).
Louisiana courts recognize four distinct factual
situations involving a legal inability to act which may toll
prescription:
(1) when courts are legally closed; (2) when
administrative or contractual restraints delay the
plaintiff’s action; (3) when the defendant prevents the
plaintiff from bringing suit; and (4) when the plaintiff
does not know nor reasonably should know of the cause of
action.
In re Medical Review Panel Proceeding Vaidyanathan, 719 So.2d 604,
607 (La. Ct. App. 1998); see also Burge, 996 F.2d at 788.
Harris could not file this federal civil rights suit
until he exhausted the available state administrative remedies, as
5
Louisiana courts refer to this suspension of prescription
as the doctrine of contra non valentem agere nulla praescriptio.
Burge, 996 F.2d at 788.
11
section 1997e requires. This exhaustion requirement functioned as
a “legal cause which prevented the courts or their officers from
taking cognizance of or acting on the plaintiff’s action.” Id.
(prescription tolled during exhaustion of state habeas remedies);
see also Whitley v. Hunt, 158 F.3d at 886. While Harris pursued
his administrative remedies from October 24, 1996, to July 14,
1997, the prescriptive period was tolled. Harris timely filed this
federal civil rights claim within one year after the prescriptive
period began to run. Harris’s civil rights claims are not barred
by prescription and his complaint cannot be said to lack “an
arguable basis in law.” Section 1915(e)(2)(B)(i) does not provide
a basis to dismiss Harris’s complaint.
IV. THE CLAIM FOR DELIBERATE INDIFFERENCE
The magistrate judge recommended dismissal of Harris’s
suit under both sections 1915(e)(2)(B)(i) and (ii). The remaining
question is whether Harris’s complaint states a claim upon which
relief may be granted. We conclude that his complaint does allege
facts that present a cognizable claim for relief.
“[I]nadequate medical care by a prison doctor can result
in a constitutional violation for purposes of a § 1983 claim when
that conduct amounts to deliberate indifference to [the prisoner’s]
serious medical needs, constitut[ing] the unnecessary and wanton
infliction of pain proscribed by the Eighth Amendment.” Stewart v.
Murphy, 174 F.3d 530, 533 (5th Cir. 1999) (internal quotation marks
omitted) (alterations in original) (quoting Estelle v. Gamble, 429
U.S. 97, 104 (1976)). Under the “deliberate indifference”
12
standard, a prison official is not liable for the denial of
medical treatment “unless the official knows of and disregards an
excessive risk to inmate health or safety”. Stewart, 174 F.3d at
534 (citing Estelle, 429 U.S. at 104). While malpractice and
negligent treatment do not rise to the level of a constitutional
tort, see Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993), a
claim of “unnecessary and wanton infliction of pain repugnant to
the conscience of mankind,” can state a claim of a constitutional
tort. McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)
(citing Estelle, 429 U.S. at 105-106).
In Estelle, the Supreme Court concluded:
[D]eliberate indifference to serious medical needs of
prisoners constitutes the “unnecessary and wanton
infliction of pain” proscribed by the Eighth Amendment.
This is true whether the indifference is manifested by
prison doctors in their response to the prisoner’s needs
or by prison guards in intentionally denying or delaying
access to medical care or intentionally interfering with
the treatment once prescribed. Regardless of how
evidenced, deliberate indifference to a prisoner’s
serious illness or injury states a cause of action under
§ 1983.
Estelle, 429 U.S. 97, 104-05 (citation omitted, footnotes omitted).
To state an Eighth Amendment claim, a plaintiff must
allege a deprivation of medical care sufficiently serious to show
that “the state has abdicated a constitutionally-required
responsibility to attend to his medical needs,” Bienvenu v.
Beauregard Parish Police Jury, 705 F.2d 1457, 1460 (5th Cir. 1983),
and that a prison official knew of and disregarded “an excessive
risk to inmate health or safety.” Stewart v. Murphy, 174 F.3d 530,
533 (5th Cir. 1999) (quoting Farmer v. Brennan, 511 U.S. 825, 837
13
(1994) “For an official to act with deliberate indifference, ‘the
official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.’” Smith v. Brenoettsy, 158 F.3d 908,
912 (5th Cir. 1998) (quoting Farmer, 511 U.S. at 837). “Under
exceptional circumstances, a prison official’s knowledge of a
substantial risk of harm may be inferred by the obviousness of the
substantial risk.” Reeves v. Collins, 27 F.3d 174, 176 (5th Cir.
1994) (citing Farmer, 511 U.S. at 842 & n.8).
In this case, Harris alleges that the repair of his
broken jaw had failed before he even left the surgery clinic. He
alleges that Dr. Hegmann and nurses Boyd and James ignored his
urgent and repeated requests for immediate medical treatment for
his broken jaw and his complaints of excruciating pain. Harris
alleges facts demonstrating that all three defendants were made
aware of, and disregarded, a substantial risk to Harris’s health
when they denied him treatment. Harris’s factual allegations
satisfy both the objective and subjective components of an Eighth
Amendment claim; he states a claim upon which relief may be
granted.
V. CONCLUSION
We hold that the Louisiana prescription period was tolled
during the pendency of Harris’s administrative complaint. Harris
timely filed this suit in federal district court within one year
after he received final notice that his administrative complaint
was dismissed. Harris’s factual allegations state an Eighth
14
Amendment deliberate indifference claim against each of the
defendants. The dismissal of Harris’s claims is REVERSED and this
case is REMANDED the matter for further proceedings.
REVERSED and REMANDED.
15