Heard, Delbert v. Sheahan, Michael F. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2908
Delbert Heard,
Plaintiff-Appellant,
v.
Michael F. Sheahan, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 3512--Wayne R. Andersen, Judge.
Submitted May 3, 2001--Decided June 13, 2001
Before Fairchild, Bauer, and Posner,
Circuit Judges.
Posner, Circuit Judge. This prisoner’s
civil rights suit under 42 U.S.C. sec.
1983 charges the defendant prison
officials with inflicting cruel and
unusual punishment on the plaintiff by
denying him medical care for his hernia.
The district court held the suit barred
by the two-year statute of limitations
applicable to such suits.
The plaintiff had been held in the Cook
County jail, awaiting trial, from January
1994 until sometime after June 6, 1996,
and he filed the suit on June 5, 1998. It
was during his confinement in the jail,
months before his release, that he
developed a prominent bulge in his groin
that he suspected was a hernia. The
hernia caused him significant pain,
especially after eating, and caused
numbness in the upper part of his thigh.
After months of unsuccessfully demanding
medical attention, he was finally
examined by a doctor who diagnosed a
ruptured hernia and recommended surgery.
But the jail refused to act on the recom
mendation. All this is according to the
complaint, and may not be true; but in
the posture the case is in we must treat
it as true.
The district court thought that the
statute of limitations began to run as
soon as the plaintiff discovered that he
had a medical problem that required
attention, and this was more than two
years before he sued. We should consider
first whether this is an issue of state
or federal law. The statute of
limitations for suits under section 1983
is supplied by state law--not only the
limitations period but also the tolling
rules. Wilson v. Garcia, 471 U.S. 261,
275 (1985); Johnson v. Railway Express
Agency, Inc., 421 U.S. 454, 464 (1975).
Tolling interrupts the statute of
limitations after it has begun to run,
but does not determine when it begins to
run; that question is the question of
accrual, Cada v. Baxter Healthcare Corp.,
920 F.2d 446, 450 (7th Cir. 1991), and in
section 1983 suits as in other suits
under federal law the answer is furnished
by federal common law rather than by
state law. E.g., Sellars v. Perry, 80
F.3d 243, 245 (7th Cir. 1996); Wilson v.
Giesen, 956 F.2d 738, 740 (7th Cir.
1992).
The district court, as we said, thought
the date of accrual was when the
plaintiff discovered he had a medical
problem that required attention. This
would be correct if the suit were for
medical malpractice. See, e.g., United
States v. Kubrick, 444 U.S. 111, 118-24
(1979); Hinkle v. Henderson, 85 F.3d 298,
301 (7th Cir. 1996); Goodhand v. United
States, 40 F.3d 209, 212 (7th Cir. 1994);
Joyner v. Forney, 78 F.3d 1339, 1341 (8th
Cir. 1996). But it is not; malpractice
does not violate the Eighth Amendment;
instead the suit charges that the
defendants inflicted cruel and unusual
punishment on the plaintiff by refusing
to treat his condition. This refusal
continued for as long as the defendants
had the power to do something about his
condition, which is to say until he left
the jail. 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. A
series of wrongful acts creates a series
of claims. Palmer v. Board of Education,
46 F.3d 682, 686 (7th Cir. 1995); Webb v.
Indiana National Bank, 931 F.2d 434, 438
(7th Cir. 1991); Morton’s Market, Inc. v.
Gustafson’s Dairy, Inc., 198 F.3d 823,
828 (11th Cir. 1999); Kuhnle Bros., Inc.
v. County of Geauga, 103 F.3d 516, 522-23
(6th Cir. 1997).
A more difficult question is precisely
how far the plaintiff can reach back in
seeking to prove liability and estimate
damages. He cannot reach back to the
first time he noticed the bulge and began
to experience pain from it, for remember
that his suit is for redress of the
deliberate indifference of the
defendants, and that could not be thought
to begin until the defendants learned
that he had a condition warranting
medical attention yet unreasonably
refused to provide that attention. Until
then, the defendants had not violated his
rights, and so his claim had not accrued.
See, e.g., Dunigan ex rel. Nyman v.
Winnebago County, 165 F.3d 587, 591-92
(7th Cir. 1999); White v. Napoleon, 897
F.2d 103, 109 (3d Cir. 1990); Todaro v.
Ward, 565 F.2d 48, 52 (2d Cir. 1977); cf.
Garrison v. Burke, 165 F.3d 565, 570 (7th
Cir. 1999); Galloway v. General Motors
Service Parts Operations, 78 F.3d 1164,
1166 (7th Cir. 1996); Saxton v. AT&T, 10
F.3d 526, 532 n. 11 (7th Cir. 1993).
But all the pain after the date of
onset, as it were, of deliberate
indifference was fair game for the
plaintiff’s suit, by virtue of the
doctrine of "continuing violation" (also
referred to as "continuing wrong,"
"continuing harm," or "continuing tort").
For the general principle see, e.g.,
Filipovic v. K & R Express Systems, Inc.,
176 F.3d 390, 396 (7th Cir. 1999); Taylor
v. Meirick, 712 F.2d 1112, 1118 (7th Cir.
1983); Newell Recycling Co. v. EPA, 231
F.3d 204, 206-07 (5th Cir. 2000); Tiberi
v. CIGNA Corp., 89 F.3d 1423, 1430-31
(10th Cir. 1996), and for its application
to improper withholding of medical
attention see Lavellee v. Listi, 611 F.2d
1129, 1132 (5th Cir. 1980), and Neel v.
Rehberg, 577 F.2d 262, 263-64 (5th Cir.
1978) (per curiam). This is a general
principle of federal common law; it is
not anything special to section 1983.
See, e.g., Freeman v. Madison
Metropolitan School District, 231 F.3d
374, 381 (7th Cir. 2000); Provencher v.
CVS Pharmacy, 145 F.3d 5, 14 (1st Cir.
1998); Rush v. Scott Specialty Gases,
Inc., 113 F.3d 476, 481 (3d Cir. 1997).
Some cases say that the doctrine of
continuing violation is a tolling
doctrine, Davis v. United States Dept. of
Justice, 204 F.3d 723, 726 (7th Cir.
2000) (per curiam); Herman v. National
Broadcasting Co., 744 F.2d 604, 607 (7th
Cir. 1984); Matson v. Burlington Northern
Santa Fe R.R., 240 F.3d 1233, 1236-37
(10th Cir. 2001); Fletcher v. Union
Pacific R.R., 621 F.2d 902, 908 (8th Cir.
1980), and if this is right it would,
because this is a section 1983 suit,
bring Illinois law into play. Illinois
has a doctrine of continuing violation,
see, e.g., Jones v. Dettro, 720 N.E.2d
343, 346 (Ill. App. 1999); Bank of
Ravenswood v. City of Chicago, 717 N.E.2d
478, 484 (Ill. App. 1999), but it is of
uncertain scope, see, e.g., River Park,
Inc. v. City of Highland Park, 692 N.E.2d
369, 374 (Ill. App.), aff’d in part and
rev’d in part, on other grounds, 703
N.E.2d 883 (Ill. 1998); Hertel v.
Sullivan, 633 N.E.2d 36, 40 (Ill. App.
1994), which might spell trouble for our
plaintiff. But the usual and it seems to
us the correct characterization of the
doctrine of continuing violation is that
it is a doctrine governing accrual, e.g.,
Wilson v. Giesen, supra, 956 F.2d at 743;
Taylor v. Meirick, supra, 712 F.2d at
1118-19; Newell Recycling Co. v. EPA, 231
F.3d 204, 206-07 (5th Cir. 2000);
Pisciotta v. Teledyne Industries, Inc.,
91 F.3d 1326, 1332 (9th Cir. 1996) (per
curiam); Page v. United States, 729 F.2d
818, 821 (D.C. Cir. 1984), not a tolling
doctrine, because we don’t want the
plaintiff to sue before the violation is
complete. Tolling rules create defenses;
they are optional with the plaintiff; he
can sue as soon as his claim accrues. We
therefore push back the accrual date
when, quite independently of the
plaintiff’s wishes, we want to delay the
right to bring suit.
It is doubtful that there is any real
disagreement, rather than a merely
terminological difference, over the
proper characterization of the doctrine
of continuing violation. For example,
Matson v. Burlington Northern Santa Fe
R.R., supra, 240 F.3d at 1237, after
stating that the doctrine of continuing
violation tolls the limitations period,
explains that where the doctrine is
applicable "the cause of action accrues
at . . . the date of the last injury."
But what exactly is a "continuing
violation"? A violation is called
"continuing," signifying that a plaintiff
can reach back to its beginning even if
that beginning lies outside the statutory
limitations period, when it would be
unreasonable to require or even permit
him to sue separately over every incident
of the defendant’s unlawful conduct. The
injuries about which the plaintiff is
complaining in this case are the
consequence of a numerous and continuous
series of events. See, e.g., M.H.D. v.
Westminster Schools, 172 F.3d 797, 804-05
(11th Cir. 1999); Interamericas
Investments, Ltd. v. Board of Governors,
111 F.3d 376, 382 (5th Cir. 1997); Sable
v. General Motors Corp., 90 F.3d 171, 176
(6th Cir. 1996); Rapf v. Suffolk County,
755 F.2d 282, 292 (2d Cir. 1985); Page v.
United States, 729 F.2d 818, 821-22 (D.C.
Cir. 1984). When a single event gives
rise to continuing injuries, as in
Sandutch v. Muroski, 684 F.2d 252, 254
(3d Cir. 1982) (per curiam), the
plaintiff can bring a single suit based
on an estimation of his total injuries,
and that mode of proceeding is much to be
preferred to piecemeal litigation despite
the possible loss in accuracy. But in
this case every day that the defendants
ignored the plaintiff’s request for
treatment increased his pain. Not only
would it be unreasonable to require him,
as a condition of preserving his right to
have a full two years to sue in respect
of the last day on which his request was
ignored, to bring separate suits two
years after each of the earlier days of
deliberate indifference; but it would
impose an unreasonable burden on the
courts to entertain an indefinite number
of suits and apportion damages among
them.
In between the case in which a single
event gives rise to continuing injuries
and the case in which a continuous series
of events gives rise to a cumulative
injury is the case in which repeated
events give rise to discrete injuries, as
in suits for lost wages. If our plaintiff
were seeking backpay for repeated acts of
wage discrimination (suppose that every
pay day for five years he had received
$100 less than he was entitled to), he
would not be permitted to reach back to
the first by suing within the limitations
period for the last. E.g., Knight v. City
of Columbus, 19 F.3d 579, 581-82 (11th
Cir. 1994); Pollis v. New School for
Social Research, 132 F.3d 115, 119 (2d
Cir. 1997); see also Thomas v. Denny’s
Inc., 111 F.3d 1506, 1513 (10th Cir.
1997); Ashley v. Boyle’s Famous Corned
Beef Co., 66 F.3d 164, 168 (8th Cir.
1995) (en banc). As emphasized in Pollis,
the damages from each discrete act of
discrimination would be readily
calculable without waiting for the entire
series of acts to end. There would be no
excuse for the delay. And so the
violation would not be deemed
"continuing." The present case is
different. It would have been impractical
to allocate the plaintiff’s pain day by
day across the period during which
medical treatment was delayed by the
deliberate indifference of the defendants
to his plight.
Numerous cases assume that a federal
doctrine of continuing wrongs is indeed
applicable to suits under 42 U.S.C. sec.
1983. E.g., Perry v. Sullivan, 207 F.3d
379, 383 (7th Cir. 2000); 287 Corporate
Center Associates v. Township of
Bridgewater, 101 F.3d 320, 324 (3d Cir.
1996); Lavellee v. Listi, 611 F.2d 1129,
1132 (5th Cir. 1980); Neel v. Rehberg,
577 F.2d 262, 263-64 (5th Cir. 1978). We
agree. We have enough prisoners’ suits
without having to create incentives to
bring multiple suits arising out of the
same course of events.
Reversed and Remanded.