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7th Circuit reverses dismissal of prisoner’s suit

February 1, 2013

A lawsuit filed by a prisoner at the Pendleton Correctional Facility against two prison doctors and a nurse after he learned he had prostate cancer is allowed to continue after the 7th Circuit Court of Appeals reversed the dismissal of his suit.

The District Court dismissed Eugene Devbrow’s 42 U.S.C. Section 1983 suit for deliberate indifference to serious medical needs in violation of the Eighth Amendment for being untimely. Devbrow alerted prison officials of his need to be tested for prostate cancer within two to four years when he entered the prison system. In February 2004, a PSA test showed an elevated PSA but Dr. Eke Kalu did not order a biopsy until April 2005. A follow-up biopsy six months later revealed Devbrow had prostate cancer that had spread to his spine, severely limiting his treatment options.

Devbrow filed his lawsuit Oct. 19, 2007, but Judge Larry McKinney dismissed it as untimely, reasoning that Devbrow should have filed his suit within two years of April 2005 when the biopsy was ordered. On appeal, the defendants contend the deliberate indifference ended in April 2007, so Devbrow could have sued for nominal or presumed damages even without a physical injury.

But Devbrow’s suit seeks redress for a concrete physical injury, not probabilistic future harm or an abstract injury, the 7th Circuit pointed out in Eugene Devbrow v. Dr. Eke Kalu, et al., 12-2467.

“The statute of limitations for a § 1983 deliberate-indifference claim brought to redress a medical injury does not begin to run until the plaintiff knows of his injury and its cause. Judged by that standard, Devbrow’s suit is timely,” Judge Diane Sykes wrote. “He did not know of his injury in April 2005 when the defendants finally ordered a biopsy; he discovered it six months later when he learned he had cancer that might have been diagnosed and treated earlier but for the defendants’ deliberate indifference. The limitations period runs from that discovery, and Devbrow filed suit just before the time expired.”

 

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