Hanks v. Singh et al

Filing 9

MEMORANDUM ORDER: Directing plaintiff to amend complaint. Pro Se Response due by 4/5/2018. Signed by Magistrate Judge Joseph H L Perez-Montes on 3/6/2018. (crt,Haik, K)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
DAVIN RYAN HANKS,
Plaintiff

CIVIL ACTION NO. 1:18-CV-22-P

VERSUS

JUDGE DEE D. DRELL

RAMEN SINGH, ET AL.,
Defendants

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER
Before the Court is a civil rights complaint (42 U.S.C. § 1983) filed by pro se
Plaintiff Davin Hanks (#399204) (“Hanks”). Hanks was granted leave to proceed in

forma pauperis. (Doc. 8). Hanks is an inmate in the custody of the Louisiana
Department of Corrections (“DOC”), incarcerated at the Raymond Laborde
Correctional Center (“RLCC”) in Cottonport, Louisiana. Hanks complains that he
was denied adequate dental care.
I.

Background
Hanks alleges that, upon his arrival at RLCC, it was determined that he

needed dental treatment. (Doc. 1, p. 8). Two months later, Hanks initiated a sick
call due to tooth pain. Nurse Sibley advised Hanks that it could be a while before he
would see a dentist, so he should continue to take prescribed pain medication. (Doc.
1, p. 8). Later that month, Dr. Smith examined Hanks and prescribed additional pain
medication. (Doc. 1, p. 8). Five months later, the prescription for pain medication
was renewed. (Doc. 1, p. 9). Hanks alleges that, by February 2016, he had developed
an abscess.

On March 3, 2016, Hanks underwent the extraction of three teeth. (Doc. 1, p.
9). Hanks alleges the extractions were caused by the delay in dental care. (Do. 1, p.
9).
II.

Instructions to Amend
District courts are authorized to dismiss a complaint as frivolous when “it is

clear from the face of a complaint filed in forma pauperis that the claims asserted are
barred by the applicable statute of limitations.” Moore v. McDonald, 30 F.3d 616, 620
(5th Cir. 1994); Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). A district court
may raise the limitation period sua sponte. See Harris v. Hegmann, 198 F.3d 153 (5th
Cir. 1999).
The statute of limitations for a § 1983 claim is borrowed from state law. See
Alford v. United States, 693 F.2d 498, 499 (5th Cir. 1982). Louisiana tort law provides
a one-year prescriptive period. See La. Civ. Code art. 3492; Gaspard v. United States,
713 F.2d 1097, 1102 n. 11 (5th Cir. 1983). Federal law, however, determines when a
§ 1983 cause of action accrues. See United Klans of America v. McGovern, 621 F.2d
152, 153 n. 1 (5th Cir. 1980). Under federal law, a cause of action accrues when the
plaintiff knows or has reason to know of the injury that is the basis of the action. Such
knowledge encompasses both: (1) the existence of the injury; and (2) the connection
between the injury and the defendant’s actions. See Brown v. Nationsbank Corp.,
188 F.3d 579, 589-90 (5th Cir. 1999). Actual knowledge is not necessary for the
limitations period to commence “if the circumstances would lead a reasonable person

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to investigate further.” Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir.
1995).
According to the complaint, Hanks was aware of his need for dental care when
he arrive at RLCC in May 2015, and knew that three teeth needed extraction in
March 2016. Hanks did not file suit until January 2018. Thus, it appears that
Hanks’s claim is prescribed. However, equitable tolling may apply to § 1983 claims
for the time spent properly exhausting administrative remedies. See Clifford v. Gibbs,
298 F.3d 328, 333 (5th Cir. 2002). Hanks should amend his complaint to state
whether he properly filed and exhausted all administrative remedies. If Hanks
properly pursued administrative remedies, he should submit copies of the grievances
and responses from each level to show that he is entitled to tolling of the prescriptive
period.
III.

Conclusion

IT IS ORDERED that Hanks amend his complaint within 30 days of the filing of
this Order to provide the information outlined above, or dismissal will be
recommended under Rule 41(b) or 16(f) of the Federal Rules of Civil Procedure.
6th
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this ____ day
of March, 2018.
____________________________________
Joseph H.L. Perez-Montes
United States Magistrate Judge

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