Massey v. U.S.

• Decision Date: 27 November 2002
• Docket Number: No. 02-1100.,02-1100.
• Citation: 312 F.3d 272
• Parties: Michael MASSEY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

312 F.3d 272

Michael MASSEY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 02-1100.

United States Court of Appeals, Seventh Circuit.

Argued September 17, 2002.

Decided November 27, 2002.

Richard L. Steagall (argued), Nicoara & Steagall, Peoria, IL, for Plaintiff-Appellant.

James A. Lewis (argued), Office of the U.S. Atty., Springfield, IL, for Defendant-Appellee.

Before FLAUM, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Michael Massey, an inmate at the Federal Correctional Institution in Pekin, Illinois ("FCI-Pekin"), filed a medical malpractice suit against the United States under the Federal Tort Claims Act ("FTCA"). The district court granted the United States' motion for summary judgment, and Mr. Massey now appeals from that ruling. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

Mr. Massey was incarcerated at FCI-Pekin from March 26, 1996, to June 29, 2000. During the summer of 1995, while incarcerated at the Marion County Jail, Mr. Massey had begun experiencing pain in his abdominal region and had noticed a lump protruding from his navel. Once Mr. Massey arrived at FCI-Pekin, he began to complain about abdominal pain. On July 19, 1996, his attorney wrote David Helman, FCI-Pekin's warden, a letter stating that Mr. Massey had a hernia "for which he may need surgery" and that the prison's response to Mr. Massey's condition had been unsatisfactory. R.43, Ex.2. The letter complained that, although the prison medical staff instructed Mr. Massey to avoid heavy lifting, such a warning was "hardly an adequate response to a hernia." Id. According to his attorney, Mr. Massey was "really in pain and in need of medical attention." Id. at 2. Mr. Massey testified that he received a copy of this letter.

On July 31, 1996, Dr. John Otten, an FCI-Pekin staff physician, examined Mr. Massey with respect to his abdominal pain. Dr. Otten told Mr. Massey that he suffered from an umbilical hernia and that the hernia required surgery soon. Dr. Otten also informed Mr. Massey that "he would put the paperwork in to get the surgery scheduled." R.43, Ex.1 at 35. According to Mr. Massey, he believed, on the basis of his conversation with Dr. Otten, that the hernia required immediate treatment. On August 5, 1996, Dr. Otten placed Mr. Massey's name on a wait list for inmates in need of surgery; however, on August 27, 1996, Ferdinand Samalio, a health services administrator at FCI-Pekin, removed Mr. Massey's name from the list.

Over the next four months, Mr. Massey's hernia grew and his pain increased greatly. By October or November of 1996, Mr. Massey was becoming very uncomfortable; he testified that he could no longer sleep on his stomach and that he had trouble with bowel movements. Because of the increased pain and Mr. Massey's belief that he needed to "stay on top" of the prison's treatment of his condition, Mr. Massey spoke to Dr. Otten, health services administrator Samalio, FCI-Pekin nurses and his attorney about obtaining the surgery promptly. Id. at 36. Mr. Massey believed that the prison was delaying his surgery; indeed, he registered numerous complaints with a prison review committee, but nothing came of his efforts.

When 1997 began, the surgery still had not taken place. Mr. Massey testified that, by this point, the hernia caused him pain on a daily basis, and he believed that his requests for an operation were being completely ignored. On January 29 of that year, Mr. Massey's attorney wrote a second letter to FCI-Pekin's warden. He stated that Mr. Massey's "hernia keeps growing, with no surgery scheduled" and that Mr. Massey's "repeated phone calls" to him caused "serious concern on [his] part as to whether [FCI-Pekin] is violating [Mr. Massey's] constitutional rights, in addition to placing his life in serious jeopardy because of inattention to his medical needs." R.43, Ex.3. In the same letter, Mr. Massey's attorney also threatened to sue FCI-Pekin in order to remedy the situation. Mr. Massey testified that he received a copy of this letter and agreed with its accusations. On December 18, 1997, Dr. John Stephen Marshall, a surgeon with the Peoria Surgical Group, examined Mr. Massey pursuant to a consultation contract with FCI-Pekin. Dr. Marshall diagnosed Mr. Massey as suffering from a freely reducible hernia, which did not require immediate surgery.¹ Mr. Massey complained that his pain was increasing, and, consequently, Dr. Marshall recommended and performed Mr. Massey's hernia operation on January 28, 1998. Dr. Marshall testified that Mr. Massey's recovery was unremarkable, with no complications. After surgery, Dr. Marshall ordered Mr. Massey to refrain from heavy lifting. He also recommended that the prison administer Vicodin to Mr. Massey for pain relief as needed.

When Mr. Massey returned to FCI-Pekin, prison officials placed him in his cell and administered Tylenol with codeine (also known as "Tylenol 3") instead of Vicodin. Rather than bring Mr. Massey his Tylenol 3, prison officials required him to walk from his cell to the infirmary to get his prescription. They also required Mr. Massey to walk from his cell to the dining hall for meals.

Following this allegedly improper treatment, Mr. Massey filed an administrative tort claim, which the Bureau of Prisons ("BOP") received on February 23, 1999. On November 10, 1999, Mr. Massey filed a medical malpractice suit against the United States pursuant to the FTCA.

B. District Court Proceedings

Mr. Massey raised two claims before the district court. First, Mr. Massey claimed that the prison was negligent in its delay in providing him with the surgical repair of his hernia. Second, Mr. Massey claimed that the prison was negligent in failing to follow post-surgical orders directing that he receive Vicodin and be placed in the prison observation unit for two days. The district court granted summary judgment in favor of the United States on both claims.

The district court held that Mr. Massey's claim of negligent delay of surgery was time-barred because he failed to present the claim to the BOP within two years after the claim accrued. The district court determined that "there is no doubt that Mr. Massey believed the hernia to be serious by January 29, 1997" and that, "since he discovered his injury (the increased pain) and its probable cause (the prison's delay) no later than January 29, 1997, the statute of limitations for his FTCA suit began to accrue on that date — if not before." R.57 at 9. The district court further held that Mr. Massey's claim for failure to follow post-surgical orders was timely but unsupported by medical evidence.

II DISCUSSION

A. Negligent Delay Claim

Mr. Massey claims that he was injured by FCI-Pekin's negligent delay in performing his hernia operation. The district court held that Mr. Massey's claim was time-barred because he failed to present the claim to the BOP within two years after the claim accrued. On appeal, Mr. Massey submits that his claim is not time-barred and that the district court incorrectly determined the date upon which his claim accrued. Mr. Massey argues essentially that he "suffered no injury until [FCI-Pekin's] delay in getting him the surgery was negligent, a departure from the accepted standard of medical care," and that this negligence did not occur outside of the two-year window. Appellant's Br. at 10. The Government, on the other hand, submits that the district court correctly determined that Mr. Massey's claim accrued no later than January 29, 1997, and therefore is barred by the statute of limitations.²

We review a district court's grant of summary judgment de novo. See O'Neal v. City of New Albany, 293 F.3d 998, 1003 (7th Cir.2002). Summary judgment is properly granted on the basis of a statute of limitations defense if "(1) the statute of limitations has run, thereby barring the plaintiff's claim as a matter of law, and (2) there exist no genuine issues of material fact regarding the time at which plaintiff's claim has accrued and the application of the statute to plaintiff's claim which may be resolved in plaintiff's favor." Green v. United States, 765 F.2d 105, 107 (7th Cir. 1985) (quoting Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1219 (7th Cir. 1984)). In this case, the statute of limitations has run, and there is no genuine issue of material fact in dispute as to when Mr. Massey's claim accrued.

The FTCA provides that "[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues." 28 U.S.C. § 2401(b). In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Supreme Court established the basic rule with respect to the accrual of an action for medical malpractice under the FTCA. In that case, the Court reversed a Court of Appeals' holding that a medical malpractice claim under the FTCA did not accrue until the plaintiff knew or should have known that the physician who caused the injury was legally blameworthy. See id. at 122, 100 S.Ct. 352. In doing so, the Court held that a claim under the FTCA accrues when the plaintiff knows both the existence and cause of his injury, and not at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice. See id. at 122-24, 100 S.Ct. 352. The Court stated that, for statute of limitations purposes, a plaintiff's ignorance of his legal rights and his ignorance of the fact of the injury or its cause should not receive equal treatment. See id. at 122, 100 S.Ct. 352. The Court further stated that to excuse a plaintiff from properly seeking advice in the medical and legal community by postponing the accrual of his claim "would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of...