BUTLER v. UNITED STATES OF AMERICA

Filing 15

ENTRY Dismissing Action - Because Mr. Butler has pled facts that show that his Bivens claim is barred by the two-year statute of limitations and his response to the Court's show cause order failed to establish that dismissal on this basis is unwarranted, his claim is dismissed and judgment consistent with this Entry shall issue. **SEE ENTRY** Copy to plaintiff via US mail. Signed by Judge Jane Magnus-Stinson on 8/10/2015.(AH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

STACY BUTLER,
Plaintiff,
v.
DR. KOJ IMAD GEORGE, DR. NAROTAM
PRADEE,
Defendants.

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No. 2:15-cv-00088-JMS-WGH

Entry Dismissing Case and Directing Entry of Final Judgment
Plaintiff Stacy Butler brings this action pursuant to Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971). He alleges that defective screws were placed in his back
by the two defendant doctors during a back surgery in 2008 while he was incarcerated at the federal
penitentiary in Terre Haute, Indiana, and that this violated his Eighth Amendment rights.
On July 13, 2015, the Court issued an order explaining why Mr. Butler’s claims appeared
to be barred by the two-year statute of limitations, and it ordered him to show cause why this case
should not be dismissed for that reason. See Jones v. Bock, 549 U.S. 199, 215 (2007) (“If the
allegations, for example, show that relief is barred by the applicable statute of limitations, the
complaint is subject to dismissal for failure to state a claim.”); see also Walker v. Thompson, 288
F.3d 1005, 1010 (7th Cir. 2002) (“[W]hen the existence of a valid affirmative defense is so plain
from the face of the complaint that the suit can be regarded as frivolous, the district judge need not
wait for an answer before dismissing the suit.”).
Mr. Butler responded to the Court’s show cause order. He recognizes that he became aware
of the allegedly defective screws in August 2012, but argues that the constitutional injury occurred

from August 2012 through April 2013, when it was decided that he needed another back surgery.
Further, Mr. Butler argues that equitable tolling should apply because it took prison officials eight
months (from August 2012 to April 2013) to conclude he needed surgery, and during this time he
was in so much pain that he could not walk to the law library and thus could not be expected to
file a complaint.
The statute of limitations in a Bivens claim is the same as that for a claim brought pursuant
to 42 U.S.C. § 1983. See Lewellen v. Morely, 875 F.2d 118, 119 (7th Cir. 1989); Bieneman v. City
of Chicago, 864 F.2d 463, 469 (7th Cir. 1988). In these cases, “federal courts apply the statute of
limitations governing personal injury actions in the state where the injury took place.” Serino v.
Hensley, 735 F.3d 588, 590 (7th Cir. 2013). “In Indiana, such claims must be brought within two
years.” Id. (citing Ind. Code § 34-11-2-4). “But federal law determines when that statute begins
to run.” Id. Bivens and § 1983 claims “accrue when the plaintiff knows or should know that his
or her constitutional rights have been violated.” Savory v. Lyons, 469 F.3d 667, 672 (7th Cir.
2006). The Court conducts a two-part inquiry to determine when this standard is met: “First, a
court must identify the injury. Next, it must determine the date on which the plaintiff could have
sued for that injury.” Id.
The injury about which Mr. Butler’s claims concern are the allegedly defective screws
placed in his back during the 2008 surgery performed by the defendants. On August 31, 2012, Mr.
Butler complained to prison officials of severe back pain. Dr. Edinger and Physician’s Assistant
Fascianna x-rayed Mr. Butler’s spine and, according to Mr. Butler, determined that the screws the
defendants had placed in his back during the 2008 surgery were broken and causing Mr. Butler’s
severe back pain. Thus, on August 31, 2012, Mr. Butler knew or should have known “that his or
her constitutional rights [may] have been violated,” and thus had to bring his claims within two

year of that date. Savory v. Lyons, 469 F.3d 667, 672 (7th Cir. 2006). But he did not file the
instant suit until more than two years later, on March 15, 2015 (the date his initial filing was
signed).
Neither of Mr. Butler’s arguments for why his claims are not barred by the statute of
limitations is persuasive. First, he argues that the constitutional injury occurred from August 2012
(when he was informed the screws were causing him back pain) through April 2013 (when it was
decided he needed another surgery), and thus he had two years from April 2013 to bring this action.
But the statute of limitations does not begin to run once the injury from the alleged constitutional
violation is addressed; it begins to run when “the plaintiff knew or should have known that his
constitutional rights had been violated.” Id. Mr. Butler admittedly knew his constitutional rights
had been violated on August 31, 2012, even if the injury caused by the violation was not solved
until later. Therefore, the statute of limitations began running on August 31, 2012, not in April
2013.
Nor does the fact that the harm from the alleged constitutional violation continued after
August 31, 2012, make it a continuous violation, which would allow suit two years from the latest
violation. “A violation is continuing where it would be unreasonable to require or even permit [a
prisoner] to sue separately over every incident of the defendant’s unlawful conduct.” Turley v.
Rednour, 729 F.3d 645, 651 (7th Cir. 2013) (citation and quotation marks omitted). But Mr. Butler
only alleges a single constitutional violation—namely, that allegedly defective screws were used
by the defendants during his 2008 surgery. Accordingly, there were not continuous constitutional
violations alleged such that the continuous violation doctrine applies.

Finally, there is no basis for equitable tolling to apply. 1 “Equitable tolling of the statute of
limitations permits a plaintiff to sue after the statute of limitations has expired if through no fault
or lack of diligence on his part he was unable to sue before, even though the defendant took no
active steps to prevent him from suing.” Savory, 469 F.3d at 673. “Such may be the case if the
plaintiff is unable to determine who caused his injury, has received inadequate notice, or if the
appointment of counsel is pending.” Id.; see Shropshear v. Corporation Counsel of City of Chi.,
275 F.3d 593, 595 (7th Cir. 2001) (“Equitable tolling permits a plaintiff to avoid the bar of the
statute of limitations if despite the exercise of all due diligence he is unable to obtain vital
information bearing on the existence of his claim.”). Mr. Butler argues that equitable tolling should
apply because it took prison officials eight months (from August 2012 to April 2013) to conclude
he needed surgery, and during this time he was in so much pain that he could not walk to the law
library and thus could not be expected to file a complaint. Even if true, Mr. Butler cannot establish
that he acted diligently in pursuing his claims, as he could have brought this action any time
between April 2013 and August 31, 2014. Nor does Mr. Butler explain what information he lacked
that bears on the existence of his claim; he was allegedly told in August 31, 2012, by two medical
professionals that the cause of his back pain was the screws placed in his back during the 2008
surgery. For these reasons, equitable tolling is unavailable to Mr. Butler.
“It is, of course, ‘irregular’ to dismiss a claim as untimely under Rule 12(b)(6). . . .
However, . . . dismissal under Rule 12(b)(6) on the basis of a limitations defense may be
appropriate when the plaintiff effectively pleads [him]self out of court by alleging facts that are
sufficient to establish the defense.” Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006)

1

The Court notes that Mr. Butler stated that he did not file a grievance concerning the facts and
claims asserted in this action, and thus there is no argument that the limitations period should be
tolled for the period during which he was exhausting his administrative remedies.

(citations omitted). Although the requirements of notice pleading are minimal, when a plaintiff
“pleads facts that show his suit is time barred or otherwise without merit, he has pleaded himself
out of court.” Tregenza v. Great American Communications Co., 12 F.3d 717, 718 (7th Cir. 1993).
Because Mr. Butler has pled facts that show that his Bivens claim is barred by the two-year statute
of limitations and his response to the Court’s show cause order failed to establish that dismissal
on this basis is unwarranted, his claim is dismissed and judgment consistent with this Entry shall
issue.

Date: _____________
08/10/2015

Distribution:
Stacy Butler
05373-017
U.S.P. Lewisburg
P.O. Box 1000
Lewisburg, PA 17837