Cose, Roger v. Schrubbe, Belinda et al

Filing 18

ORDER denying 12 Motion to Dismiss. Signed by District Judge James D. Peterson on 4/18/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ROGER ALLEN COSE,

v.

Plaintiff,

MARY GORSKE and CHARLES LARSON,

OPINION & ORDER
14-cv-540-jdp

Defendants.
On December 22, 2015, I granted pro se plaintiff Roger Allen Cose leave to proceed
with his Eighth Amendment deliberate indifference claim for failure to treat a fractured
fibula, as alleged against defendants Mary Gorske and Charles Larson. Now defendants have
moved to dismiss plaintiff’s claim as untimely. Dkt. 12. Defendants contend that plaintiff’s
claim is barred by the applicable statute of limitations. Plaintiff responds that his claim did
not accrue until February 2013, when a nurse practitioner at the Stanley Correctional
Institution informed him that he had been suffering from an overriding fibula fracture since
at least October 2003. I will deny defendants’ motion because plaintiff alleges an ongoing
injury that continued as long as defendants refused the needed treatment.

BACKGROUND
I have discussed the relevant background and plaintiff’s allegations in previous orders,
and I will not repeat everything here. To summarize, plaintiff alleges that defendants knew in
October 2003 that he had fractured his fibula, but they failed to properly treat the fracture,
causing plaintiff to experience unnecessary, ongoing pain. In February 2013, plaintiff learned

that he had fractured his fibula and that the fracture had been visible on X-rays since at least
October 2003. Plaintiff filed suit in this court on August 4, 2014.
Plaintiff has submitted new facts and documents in support of his opposition to
defendants’ motion, including medical records. But I cannot consider these documents when
evaluating a Rule 12(b)(6) motion to dismiss, which challenges the sufficiency of the
pleadings. Regardless, the documents are not relevant to the statute of limitations inquiry.

ANALYSIS
A motion to dismiss pursuant to Rule 12(b)(6) tests the complaint’s legal sufficiency.
To state a claim upon which relief can be granted, a complaint need only provide a “short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2).
Defendants contend that plaintiff’s claim is barred by the applicable statute of
limitations. 42 U.S.C. § 1983 does not have a limitations period. Instead, “to determine the
proper statute of limitations for § 1983 actions, a federal court must adopt the forum state’s
statute of limitations for personal injury claims.” Ashafa v. City of Chicago, 146 F.3d 459, 461
(7th Cir. 1998) (citing Wilson v. Garcia, 471 U.S. 261, 276 (1985)). Accordingly, I apply
Wisconsin’s six-year statute of limitations for personal rights claims. Wis. Stat. § 893.53; see
also Gray v. Lacke, 885 F.2d 399, 409 (7th Cir. 1989). Plaintiff filed suit on August 4, 2014;
for his claim to be timely, it must have accrued—in other words, the statute of limitations
must have started running—no earlier than August 4, 2008.
Although Wisconsin’s limitation period applies, federal law governs when plaintiff’s
claim accrued. Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993) (citing Wilson v.

2

Giesen, 956 F.2d 738, 740 (7th Cir. 1992)). Generally speaking, “[s]ection 1983 claims
accrue when the plaintiff knows or should know that his or her constitutional rights have
been violated.” Id. (citations and internal quotation marks omitted). But no single, one-sizefits-all accrual rule applies to all § 1983 claims; rather, “we use the rule that applies to the
common-law cause of action most similar to the kind of claim the plaintiff asserts.” Devbrow
v. Kalu, 705 F.I gues3d 765, 767 (7th Cir. 2013). Because Eighth Amendment deliberate
indifference claims alleging medical error are most analogous to common law medical
malpractice claims, “[t]he statute of limitations for a § 1983 deliberate-indifference claim
brought to redress a medical injury does not begin to run until the plaintiff knows of his
injury and its cause.” Id. at 766, 768.
The basic principles are illustrated in a pair of Seventh Circuit decisions. In Devbrow,
prison medical staff delayed in ordering a prostate biopsy for the plaintiff. The Seventh
Circuit held that the plaintiff’s deliberate indifference claim against the prison officials
accrued when the plaintiff learned that he had prostate cancer and that it had metastasized
beyond treatment, a progression attributable to the prison officials’ delay. Up until that
point, the plaintiff had no way of knowing that he had incurred an injury attributable to the
defendants’ deliberate indifference. Compare that case with Givens v. Luedtke, where the
plaintiff alleged that a prison dentist unconstitutionally delayed in treating him. 587 F. App’x
979, 980 (7th Cir. 2014), reh’g denied, (Jan. 12, 2015). The Seventh Circuit held that the
plaintiff’s deliberate indifference claim accrued when he knew that he had a painful mouth
injury that required a specialist’s attention. Id. The court distinguished Givens from Devbrow
because unlike Devbrow and his undiagnosed cancer, Givens knew that his mouth was
seriously damaged after a two-month delay in treatment, even though Givens did not learn

3

that the defendants had caused the severe injury until two years later. Givens was aware of his
injury and that defendants’ deliberate indifference (i.e., the delay in treatment) caused the
injury years before he received a formal diagnosis.
Ongoing injuries such as those alleged in this case pose a special situation. Consider a
third case, Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001), with facts that are analogous to
those giving rise to plaintiff’s claim. In Heard, the plaintiff alleged that prison officials delayed
in treating his hernia. After months of complaining of pain and unsuccessfully demanding
medical attention, a doctor finally diagnosed a ruptured hernia and recommended surgery.
Heard, 253 F.3d at 317. The Seventh Circuit held that the plaintiff had alleged a continuing
constitutional violation and that his injury continued “for as long as the defendants had the
power to do something about his condition[.]” Id. at 318. “Every day that they prolonged his
agony by not treating his painful condition marked a fresh infliction of punishment that
caused the statute of limitations to start running anew.” Id. In other words, when deliberate
indifference continues over a period of time, “the statute of limitations does not start to run
any earlier than the last day of the ongoing injury.” Devbrow, 705 F.3d at 770 (emphasis in
original).
Here, plaintiff’s alleged injury is the ongoing pain that he has experienced since
October 2003. He alleges that from 2003 to 2011, he continually complained to Gorske and
Larson that he was experiencing “overwhelming pain and swelling to his lower left leg.”
Dkt. 15, at 5. Plaintiff alleges that the pain “did not subside for the whole duration of his
stay at WCI[.]” Id. at 6. Assuming that defendants had been deliberately indifferent to
plaintiff’s severe medical need since October 2003, as plaintiff alleges, plaintiff’s claim
renewed each day that defendants Gorske and Larson did not treat his fractured fibula.

4

Plaintiff’s claim accrued sometime in 2011, when the DOC transferred plaintiff to Stanley
Correctional Institution and defendants were no longer responsible for his treatment.
Plaintiff’s claim is timely, and I will deny defendants’ motion to dismiss.

ORDER
IT IS ORDERED that defendants Mary Gorske and Charles Larson’s motion to
dismiss, Dkt. 12, is DENIED.
Entered April 18, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

5