Clarke v. Federal Transfer Center et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION for 14 Report and Recommendation, Therefore, the Report and Recommendation, as supplemented herein, is ADOPTED; Plaintiffs claims against FTC-Oklahoma City and FCC- Forrest City and against the individu al Defendants in their official capacities are DISMISSED; Plaintiffs claim against Defendant Walker in his individual capacity is DISMISSED and this case is TRANSFERRED to the United States District Court for the Eastern District of Arkansas. Signed by Honorable David L. Russell on 2/12/13. (jw, ) [Transferred from okwd on 2/12/2013.]

THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TIBAL CLARKE,
Plaintiff,
v.
FEDERAL TRANSFER CENTER, et al.,
Defendants.

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Case No. CIV-12-1094-R

ORDER
Before the Court is the Report and Recommendation of United States Magistrate
Judge Shon T. Erwin entered December 28, 2012. Doc. No. 14. Also before the Court is
Plaintiff’s Objection to the Report and Recommendation. Doc. No. 19. Plaintiff’s only
objection to the Report and Recommendation is to the Magistrate Judge’s conclusion that
Plaintiff’s Bivens claim against Defendant Walker in his individual capacity is barred by the
applicable two-year Oklahoma statute of limitations, Okla. Stat. tit. 12, § 95(3). The
Magistrate Judge concluded that as of December of 2009, when Plaintiff had been
experiencing rectal bleeding for the previous three months, or at least by August of 2009,
when Plaintiff asked to be tested for cancer, Plaintiff’s claim for medical malpractice had
accrued because he “had reason to know that he had allegedly been denied constitutionally
adequate medical care at the hands of Defendant Walker. . . .” Report and Recommendation
at pp. 6-7.
The Magistrate correctly concluded that federal rather than state law determines when
a cause of action accrues and the two-year Oklahoma statute of limitations begins to run.

Report and Recommendation at p. 6; compare with Mondragon v. Thompson, 519 F.3d 1078,
1082 (10th Cir. 2008)(§ 1983 claim is governed by state statute of limitations of the state in
which the federal court sits but federal law determines the date on which the claim accrues
and the statute of limitations begins to run). A cause of action for medical malpractice
accrues under federal law when the plaintiff has discovered both his injury and its cause.
United States v. Kubrick, 444 U.S. 111, 120, 100 S. Ct. 352, 62 L. #d. 2d 259 (1979). In a
misdiagnosis/failure to treat claim, “the relevant injury for accrual is the injury that is caused
by the misdiagnosis and lack of treatment, not the pre-existing injury that brought the patient
to the doctor’s door.” Harvey v. United States, 685 F.3d 939, 949 (10th Cir. 2012). In such
a case, “it is only when the patient becomes aware or through the exercise of reasonable
diligence should have become aware of the development of a pre-existing problem into a
more serious problem that his cause of action can be said to have accrued . . . .” Id.
(determining accrual under federal law for an FTCA medical malpractice case of
misdiagnosis/failure to treat). Under the foregoing federal cases, the Court concludes that
Plaintiff’s medical malpractice claim under Bivens for failure to diagnose/failure to treat did
not accrue and the statute of limitations did not begin to run until Plaintiff learned that he had
colon cancer in August of 2010. Plaintiff filed this action on October 3, 2012. Accordingly,
Plaintiff’s Bivens claim against Defendant Walker in his individual capacity is barred by
Oklahoma’s two-year statute of limitations.
Plaintiff does not object to the Magistrate Judge’s other conclusions and
recommendations. Therefore, the Report and Recommendation, as supplemented herein, is
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ADOPTED; Plaintiff’s claims against FTC-Oklahoma City and FCC-Forrest City and against
the individual Defendants in their official capacities are DISMISSED; Plaintiff’s claim
against Defendant Walker in his individual capacity is DISMISSED and this case is
TRANSFERRED to the United States District Court for the Eastern District of Arkansas.
IT IS SO ORDERED this 12th day of February, 2013.

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