Kennedy v. Henman ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30420
Summary Calendar
MICHAEL E. KENNEDY,
Plaintiff-Appellant,
versus
G. L. HENMAN; ET AL.,
Defendants,
MICHAEL E. KENNEDY,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA; ET AL.,
Defendants,
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
96-CV-835
March 1, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Michael E. Kennedy appeals the dismissal of his two Bivens
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
claims, the grant of summary judgment on two claims under the
Federal Tort Claims Act (FTCA), and the refusal to appoint counsel.
Kennedy claims that his in forma pauperis complaint should not
have been dismissed because application of the Prison Litigation
Reform Act ("PLRA") violates the Ex Post Facto Clause. The district
court dismissed Kennedy’s Bivens claim as untimely under the
applicable statute of limitations. The application of the PLRA
served as the procedural framework, but was not the reason that his
claim was dismissed.
Kennedy also argues that the date of accrual for a
Bivens claim should be consistent with the statute of limitations
governing FTCA claims. This claim is without merit. Federal law
defines the accrual of a Bivens claim, and under federal law the
time begins to run when the plaintiff knows that he has been
injured.1 We look to state law to determine the applicable
limitations period.2
Kennedy claims that the district court should not have denied
the appointment of counsel and failed to explain its reasons for
denying the appointment of counsel. We review the denial of
appointment of counsel for abuse of discretion.3 Denial of
1
Leavell v. Kieffer, 189 F.3d 492, 494 (7th Cir. 1999)
(Easterbrook, J.).
2
McGuire v. Turnbo, 137 F.3d 321, 324 (5th Cir. 1998).
3
Castro Romero v. Becken, 256 F.3d 349, 354 (5th Cir. 2001).
2
appointment of counsel was appropriate, and the district court
adequately stated its reasons for doing so. The district court did
not abuse its discretion. Moreover, the district court also
permitted sufficient discovery in the form of requests for
admissions, interrogatories, and requests for the production of
documents.
Kennedy argues that the district court erred in granting
summary judgment. Kennedy contends that his testimony and the
testimony of the defendants were contradictory as to when the
decision was made to move the cellmate and why it was not done. The
district court did not grant summary judgment on his failure to
protect claim. The Bivens claim was dismissed as prescribed, and
the FTCA claim went to trial.
Kennedy argues that his affidavit called into question
“defendant’s lack of response to use of a stretcher, delay in
treatment after diagnosis as a possible femur fracture, and denial
of the medical treatment prescribed by use of an informal and
unwritten policy.” The evidence showed that after the fight Kennedy
was transported to the infirmary by an electric cart, that a
possible femur fracture was assessed on Saturday, July 15, and he
was referred for x-rays on Monday, July 17. Defendants admit that
Kennedy was denied permission to attend his outside appointment
because he refused to use the black box restraints.
Kennedy argues that the facts establish that the defendants
3
were deliberately indifferent to his serious medical needs. More
specifically, Kennedy claims that the delay in treatment from
Saturday to Monday established deliberate indifference. Kennedy was
examined on a Saturday night, at which time a possible fracture was
diagnosed. Pain medication and warm soaks were prescribed. Kennedy
was brought in for x-rays on Monday, and he had surgery on Tuesday.
These facts do not suggest that the one-day delay in getting the x-
rays was due to deliberate indifference.
Kennedy argues that the district court improperly applied an
excessive force standard to dismiss his deliberate indifference
claim. The district court found that the requirement of the black
box and the denial of the outside appointment when he refused to
use the black box did not amount to deliberate indifference. The
district court applied the appropriate standard, and properly
dismissed Kennedy’s claim.
AFFIRMED.
4