United States District Court, W.D. Louisiana, Alexandria Division
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
the Court is a Complaint (Doc. 1) filed by pro se Plaintiff
Lawrence Davis (#21218-016) under Bivens v. Six Unknown
Agents of the Federal Bureau of Narcotics. At the time of
filing, Davis was a District of Columbia inmate in the
custody of the United States Bureau of Prisons
(“BOP”). Davis's complaint was initially
filed in the United States District Court for the District of
New Hampshire but was transferred to this District Court.
(Doc. 6). Because Davis failed to provide documents on
approved forms, and his mail was returned to the Clerk of
Court as undeliverable, the complaint was stricken. (Doc.
15). Approximately two years later, Davis filed a letter
requesting that his case be reopened, which was granted.
(Docs. 18, 19).
it appears that his claims are untimely, and Davis made
inconsistent allegations regarding the exhaustion of his
administrative remedies in his two complaints, Davis must
AMEND to provide additional information to the Court.
27, 2014, while housed at the United States Penitentiary in
Pollock, Louisiana, Davis was attacked by several inmates.
Davis suffered serious injuries, which required
hospitalization and surgical intervention. (Doc. 1, pp. 4-5).
original complaint, Davis alleges that Defendant Officers
Qualls and Johnson were present during the assault and failed
to intervene. (Doc. 1, p. 6). Davis also alleges Officers
Qualls and Johnson directed the inmates to assault him. (Doc.
I, p. 5). In addition to severe physical injuries, Davis
claims he suffered mental and emotional injuries as a result
of the attack.
further asserts in his first complaint that St. Francis
Cabrini Hospital, Dr. Smith, Dr. Lenhan, and Dr. Dozier, were
negligent during surgery to repair Davis's medial right
orbital wall. (Doc. 1, p. 5).
second complaint, Davis claims that Officer Jackson failed to
properly conduct security checks, which led to the attack.
(Doc. 20, p. 3).
Instructions to Amend
statute of limitations for a Bivens action is
borrowed from state law. See Alford v. United
States, 693 F.2d 498, 499 (5th Cir. 1982). Louisiana
tort law provides a one-year prescriptive period.
See La. Civ. Code Ann. art. 3492; Gaspard v.
United States, 713 F.2d 1097, 1102 n. 11 (5th Cir.
1983). Federal law, however, determines when a
Bivens action accrues. United Klans of America
v. McGovern, 621 F.2d 152, 153 n. 1 (5th Cir. 1980).
Under federal law, a cause of action accrues when the
plaintiff knows or has reason to know of the injury that is
the basis of the action. Such knowledge encompasses both: (1)
the existence of the injury; and (2) the connection between
the injury and the defendant's actions. See Brown v.
Nationsbank Corp., 188 F.3d 579, 589-90 (5th Cir. 1999).
Actual knowledge is not necessary for the limitations period
to commence “if the circumstances would lead a
reasonable person to investigate further.”
Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th
knew of his failure to protect claim on the date of his
attack-July 27, 2014. Davis was aware of the alleged medical
negligence, at the latest, on February 6, 2015 when Davis was
diagnosed with dry eyes, which he attributes to the
negligence of the defendant doctors. Davis's
Bivens complaint was filed more than one year later,
on June 28, 2016. (Doc. 1).
statute of limitations applicable to a Bivens action
“is tolled while a prisoner fulfills 42 U.S.C. §
1997e's administrative exhaustion requirement.”
See Starks v. Hollier, 295 Fed.Appx. 664, 665 (5th
Cir. 2008) (citing Wright v. Hollingsworth, 260 F.3d
357, 359 (5th Cir. 2001)); Clifford v. Gibbs, 298
F.3d 328, 333 (5th Cir. 2002) (holding that, because the PLRA
requires a prisoner to exhaust his administrative remedies,
the prisoner is entitled to equitable tolling of the
applicable limitations period while he exhausts the
remedies). Therefore, unless Davis properly exhausted his
administrative remedies, his complaint is time-barred.
original complaint, Davis specifically states that he did not
exhaust administrative remedies. (Doc. 1, p. 6). In a recent
complaint, however, Davis claims that he ...