Delbert HEARD, Plaintiff-Appellant, v. Willard ELYEA, Defendant-Appellee.
No. 12-3397.
United States Court of Appeals, Seventh Circuit.
Submitted May 30, 2013. Decided June 3, 2013.
510-512
AFFIRMED.
Delbert Heard, Pontiac, IL, pro se.
Michael John Charysh, Attorney, Charysh & Schroeder, Ltd., Evan Siegel, Attorney, Office of the Attorney General, Chicago, IL, for Defendant-Appellee.
Before FRANK H. EASTERBROOK, Chief Judge, JOEL M. FLAUM, Circuit Judge, and DIANE S. SYKES, Circuit Judge.
Order
Dissatisfied with the medical care he received while in prison, Delbert Heard filed suit under
Because the district court ruled in Elyea‘s favor under the statute of limitations, the record contains little evidence about what Elyea is supposed to have done wrong. Elyea was the head of a department, not Heard‘s treating physician, and
Heard had been suffering from two painful hernias for several years when he arrived at Menard Correctional Center in March 2006. The medical staff at Menard declined to authorize surgery until May 2007. The surgeon remarked at the time that an earlier intervention would have been appropriate. Heard filed this suit three days short of two years after the surgery took place and in Illinois the statute of limitations is two years, tracking the state‘s general time limit for personal-injury litigation. See Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985);
Heard invokes what he and the district court called the “continuing violation doctrine“, under which misconduct that causes (or fails to solve) a continuing injury is treated as if the claim accrues, not with any of the wrongful acts, or with the first manifestation of injury, but with injury‘s elimination. It is not clear that federal law has such a doctrine—or that, if it once did, the doctrine survived Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007), and National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Normally a federal claim accrues when injury begins (or is discovered), not when it ends. See United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).
Our pre-Morgan decisions discussing the “continuing violation doctrine” recognized that the termination of injury is not the sole trigger for a claim‘s accrual. We held in Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir.2001), that, even when injury is ongoing, a claim against any particular person accrues immediately when that person loses the ability “to do something about [the plaintiff‘s] condition“. (The plaintiff in this suit was the plaintiff in Heard v. Sheahan too.) This means, we concluded in 2001, that, when a person resigns or retires from his public employment, the claim accrues on that date. Accord, Shomo v. City of New York, 579 F.3d 176, 182 (2d Cir.2009); Hensley v. Columbus, 557 F.3d 693, 697 (6th Cir.2009). Heard seeks to distinguish our 2001 decision on the ground that he remained at Menard through the date of surgery, but
Heard is right to observe that a prisoner may have a hard time knowing when supervisors in a state‘s bureaucracy resign or retire. The fact that a prisoner does not know what, if anything, a supervisor is doing (and therefore cannot tell whether the supervisor has departed) may show that the claim depends on vicarious liability and is barred for that reason. At all events, prisoners need not find out immediately. They have two years from the date a state actor departs to pursue any legal claims they may have. That is an ample opportunity. See Hall v. Norfolk Southern Ry., 469 F.3d 590, 596 (7th Cir. 2006) (“It is the plaintiff‘s responsibility to determine the proper party to sue and to do so before the statute of limitations expires.“).
AFFIRMED
* After examining the briefs and the record, we have concluded that oral argument is unnecessary. See