United States District Court, W.D. Louisiana, Lake Charles Division
RICO TAYLOR REG. # 90834-071
UNITED STATES, ET AL.
REPORT AND RECOMMENDATION
KATHLEEN KAY, MAGISTRATE JUDGE.
the court is a complaint and amendment thereto filed pursuant
to Bivens v. Six Unknown Named Agents, 91 S.Ct. 1999
(1971), and the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 2671 et seq., by Rico Taylor, who
is proceeding pro se and in forma pauperis.
This matter has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636 and the standing orders of this
is an inmate in the custody of the Bureau of Prisons
(“BOP”) and is currently incarcerated at the
Federal Correctional Institute in Butner, North Carolina
(“FCI-Butner”). His complaint relates to events
that allegedly occurred at the Federal Correctional Institute
in Oakdale, Louisiana (“FCIO”). The factual basis
of Taylor's claims and relevant procedural background can
be found in our preceding memorandum order. Doc. 8. In that
order, we advised Taylor that his Bivens claims
appeared to be time-barred and that he should assert grounds
for tolling the statute of limitations for those claims.
Id. Taylor has now responded, asserting that all
claims are timely based on Louisiana's doctrine of
continuing torts. Doc. 11.
noted in our previous order, Taylor's Bivens
claims are governed by a one-year statute of limitations
borrowed from Louisiana law. Hawkins v. McHugh, 46
F.3d 10, 12 (5th Cir. 1995); La. Civ. Code art. 3492. In
applying the state statute of limitations for a
Bivens claim, the court must give effect to any
state tolling provisions. Gartrell v. Gaylor, 981
F.2d 254, 257 (5th Cir. 1993). However, the accrual of a
claim under Bivens is governed by federal law.
Banks v. FDIC, 374 Fed. App'x 532, 535 (5th Cir.
2010) (unpublished) (citing Piotrowski v. City of
Houston, 237 F.3d 567, 576 (5th Cir. 2001)).
“Under federal law, the [limitations] period begins to
run the moment the plaintiff becomes aware that he has
suffered an injury or has sufficient information to know that
he has been injured.” Piotrowski, 237 F.3d at
576. “The continuing-tort doctrine is one of accrual
and thus a question of federal, rather than state,
law.” Nottingham v. Richardson, 499 Fed.
App'x 368, 375 & n. 5 (5th Cir. 2012). The continuing
tort doctrine is also recognized under federal law. See
Id. Under federal law, “[w]here an individual
suffers a series of discrete injuries, rather than an ongoing
and persistent injury, the continuing tort doctrine does not
apply.” Petrus v. U.S. Justice Dep't, 18
F.3d 936 (5th Cir. 1994) (citing Wilson v. Zapata Off
Shore Co., 939 F.2d 260, 269 (5th Cir. 1991)). In a
medical care context, “each instance of potentially
deliberate indifference cease[s] when [the plaintiff]
receive[s] medical attention.” Nottingham, 499
Fed. App'x at 375.
Bivens claims, Taylor seeks to hold individual FCIO
employees liable for medical care at that facility that
allegedly violated his rights under the Eighth Amendment, and
for alleged retaliatory transfer to FCI-Butner. He names no
FCI-Butner employees as individual defendants in this matter,
and admits that he received further testing and treatment
upon his arrival at that facility. See doc. 6, pp.
3-4, 9-10. Furthermore, he contends that he had exhausted his
Bivens claims against the FCIO employees through
administrative remedies completed with an appeal to the
Central Office in April 2015, which complained only of the
care he had received at FCIO. See doc. 6, att. 1, p.
22. In his administrative tort claim, he details the
treatments and diagnoses he has received at FCI-Butner but
appears to provide these details as a means of showing the
seriousness of his condition. Id. at 9-10. He
specifically states that he is owed damages for the
“negligent, delayed, and sub-standard medical care by
medical staff while [he] was housed at Federal Prison Camp,
in Oakdale . . . .” Id. at 11. Accordingly, to the
extent a continuing tort was involved in Taylor's
Bivens claims, it was limited to the alleged acts
and omissions of defendants at FCIO and could not provide for
accrual of the action past the date of his transfer to
FCI-Butner in December 2014.
for tolling of that matter until his administrative remedies
were exhausted in November 2015, and assuming
arguendo that he was likewise entitled to tolling of
some sort while his administrative tort claim was pending
from August 2016 until July 2017, we find that Taylor still
accrued over one year against the limitations period for his
Bivens claims, counting from November 2015 to August
2016 and then from July 2017 to January 2018, when this suit
was filed. Taylor alleges that he is entitled to tolling
based on interference by BOP staff with his legal papers up
to December 2015, but even this extra month would not rescue
the timeliness of his Bivens claims. See
doc. 11, p. 5. Finally, he attaches records of administrative
remedy requests filed from FCI-Butner, but provides no basis
why these should entitle him to tolling of his claims against
FCIO defendants. See doc. 11, att. 1, pp. 2-6.
IT IS RECOMMENDED that Taylor's
Bivens claims be DISMISSED
WITH PREJUDICE under 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim on which
relief may be granted, resulting in the dismissal of all
defendants except the United States. By separate order, we
will order service of his FTC A claims only.
to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the
Federal Rules of Civil Procedure, the parties have fourteen
(14) days from receipt of this Report and Recommendation to
file written objections with the Clerk of Court. Failure to
file written objections to the proposed factual findings
and/or the proposed legal conclusions reflected in this
Report and Recommendation within fourteen (14) days of
receipt shall bar an aggrieved party from attacking either
the factual findings or the legal conclusions accepted by the
District Court, except upon grounds of plain error. See
Douglass v. United Services Automobile Ass 'n, 79
F.3d 1415, 1429-30 (5th Cir. 1996).
DONE AND SIGNED.
 This request was rejected for
procedural reasons and resubmitted by Taylor on September 16,
2015. Doc. 6, att. 1, p. 12. Accordingly, as we stated in our
previous order, because it does not appear that Taylor
received a response to this request, Taylor's