United States District Court, W.D. Louisiana, Lake Charles Division
NEIL E. HAVLIK also known as Neal E. Havlik REG. # 24985-009
UNITED STATES OF AMERICA
D. CAIN, JR. JUDGE
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is a civil rights complaint filed pursuant to
Bivens v. Six Unknown Named Agents, 91 S.Ct. 1999
(1971), by plaintiff Neil E. Havlik, who is proceeding pro se
and in forma pauperis in this matter. Havlik is an inmate in
the custody of the Bureau of Prisons and is currently
incarcerated at the Federal Correctional Institution at
Oakdale, Louisiana (“FCIO”), where the events
giving rise to his claims occurred. This matter has been
referred to the undersigned for review, report, and
recommendation in accordance with 28 U.S.C. § 636 and
the standing orders of this court.
complaint arises from an injury he sustained to his back
while at FCIO, and the medical care he received thereafter.
Havlik, who requires a cane to walk, alleges that on January
4, 2017, he was taken to the SHU with his hands handcuffed
behind his back. Doc. 1. He was forced to go down stairs, at
which time he sustained an injury to his back. Id.
He alleges that since that incident, he has been denied
medical care and pain medication. Id. He makes
numerous allegations against prison staff in their official
and individual capacities.
seeks recovery under Bivens. The 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).
law determines when a Bivens cause of action
accrues. See 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 which 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 Cir. 1995).
to the complaint, Havlik knew of the injury by February 2017,
when the results of the x-ray taken one month after the
incident revealed a compression fracture of his T-12
vertebra. Doc. 1, p. 13. Havlik had one year, or
until February 2018, within which to file suit under
Bivens. However, equitable tolling may apply to
cases filed under Bivens, for the time spent
properly exhausting BOP administrative remedies. See
Clifford v. Gibbs, 298 F.3d 328, 333 (5th Cir. 2002).
Havlik has not shown that he has exhausted his administrative
remedies with the BOP on each claim he brings in the instant
Havlik is instructed to amend his complaint to provide copies
of all grievances and responses at each level to show that he
is entitled to tolling of the prescriptive period.
should be given the opportunity to remedy the deficiency by
showing why his claims are not barred by the statute of
limitations or dismiss those claims that he cannot remedy.
Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.
THE CLERK IS DIRECTED to mail a copy of this
order to Havlik at his last address on file.
IS ORDERED that Havlik amend his complaint within
thirty (30) days of the filing of this order to cure the
deficiencies as outlined above and dismiss ...