* District Judge of the Southern District of Texas,

sitting by designation.

UNITE STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30617

MARK ANTHONY HARRIS,

Plaintiff-Appellant,

VERSUS

MICHAEL HEGMANN, JANET BOYD, and ROSE JAMES,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Louisiana

December 8, 1999

Before KING, Chief Judge; STEWART, Circuit Judge; and ROSENTHAL,

District Judge.*

PER CURIAM:

Mark Anthony Harris, a Louisiana state prisoner, sued

three prison medical staff members under 42 U.S.C. § 1983, alleging

deliberate indifference to his serious medical needs in violation

of the Eighth Amendment. Harris exhausted the administrative

procedures available within the state prison system, then filed

suit in state court, and finally filed his federal suit. Because

Harris did not file this federal lawsuit until approximately 17

months after the events at issue, the district court concluded that

Harris’s claims were barred by the one-year prescription period
 

1 Harris is now a prisoner at the Allen Correctional Center

in Kinder, Louisiana.

2

applicable to federal civil rights suits filed in Louisiana. We

conclude that Harris’s exhaustion of his administrative remedies

tolled the prescriptive period and that Harris’s federal claims

were timely filed. Accordingly, we REVERSE and REMAND for further

proceedings.

I. BACKGROUND

On October 7, 1996, appellant Mark Anthony Harris, an

inmate at the Hunt Correctional Center in St. Gabriel, Louisiana,1

received medical treatment for a broken jaw. On October 26, 1996,

doctors at the oral surgery clinic of the Earl K. Long Hospital

removed the retaining wires used to set Harris’s jaw. Some thirty

to forty minutes later, as Harris waited in an outside holding

cell, his jaw shifted and “fell out of place,” causing him

excruciating pain. Harris told the corrections officer supervising

him that his jaw had “slipped” and asked to be taken back into the

oral surgery clinic to have the jaw reset. The officer replied

that he could not take Harris back inside the clinic. The officer

instead tried to reach the clinic staff by telephone, but was

unsuccessful. Harris had to return to the Hunt Correctional Center

without treatment.

At the infirmary of the Correctional Center, Harris told

Rose James, a licensed practical nurse, that his jaw had “fallen

out of place,” that he was in great pain, and that he required

emergency medical attention. James told Harris that he did not
3

need to see the prison doctor. Instead, James made an appointment

for Harris to see a dentist on a non-emergency basis. Harris

complained, without result.

The following morning, October 23, 1996, Harris

complained to Janet Boyd, a registered nurse, about his jaw, his

pain, and his need for immediate treatment. Boyd remarked that

Harris already had an appointment to see the dentist and left.

That afternoon, Harris was able to see Dr. Michael Hegmann, who was

making his weekly rounds at the Correctional Center. Harris

explained his medical problem to Dr. Hegmann. The doctor performed

a cursory inspection of Harris’s mouth, told an accompanying doctor

that Harris could be discharged from the clinic, and left. That

evening, Harris persuaded another nurse to log his complaint and

send a request for immediate treatment to the dental department.

The following afternoon, October 24, 1996, Harris was

discharged from the infirmary. Dr. Hegmann’s discharge orders

called for Harris to return to a working cell block and eat a

normal diet. Dr. Hegmann’s discharge orders overrode the hospital

surgeon’s order, issued two days earlier, that Harris remain on a

liquid diet for one week. Harris filed a written administrative

complaint.

Harris was scheduled for a routine follow-up appointment

at the oral surgery clinic of the hospital on October 30, 1996. No

medical professional saw Harris between the examination by Dr.

Hegmann on October 23, 1996, and his return visit to the hospital

on October 30, 1996. Harris alleges that during that week, he
4

suffered constant and extreme pain, magnified by his struggle to

eat solid food with a broken jaw. When Harris returned to the

hospital’s oral surgery clinic for the follow-up appointment, an xray quickly verified that Harris’s jaw had rebroken. Clinic staff

reset and rewired the jaw the same day.

The Louisiana prison system has established a three-step

administrative review procedure for prisoner complaints. Under

this system, Harris’s administrative complaint was first reviewed

by the prison hospital administrator, then by the warden of the

Correctional Center, and finally by the Secretary of Corrections

for the State. At each level of review, Harris was denied relief.

The Louisiana Department of Corrections issued the final denial of

Harris’s administrative complaint on July 14, 1997.

Officials of the Louisiana Department of Corrections told

Harris that he must appeal the denial of his administrative

complaint in the Louisiana state courts before filing a federal

civil rights lawsuit. Following this instruction, Harris filed

suit in the 19th Judicial District Court of Louisiana on June 30,

1997. On February 5, 1998, the state court dismissed Harris’s

suit. On March 25, 1998, Harris filed this suit in the federal

district court for the Middle District of Louisiana, Baton Rouge

Division. Proceeding pro se and in forma pauperis, Harris asserted

section 1983 claims against Hegmann, James, and Boyd for their

refusals to provide medical attention and treatment between October

22 and October 30, 1996.
5

On April 8, 1998, the magistrate judge recommended

dismissal of Harris’s complaint as untimely. The magistrate judge

concluded that Harris’s claims were prescribed by the one-year

limitation period established by the Louisiana Civil Code, Article

3536, because Harris did not file his federal suit for 17 months

after the challenged acts occurred. The magistrate judge

recommended that Harris’s complaint be dismissed under 28 U.S.C. §

1915(e)(2)(B)(i), as lacking an arguable basis in law, and under 28

U.S.C. § 1915(e)(2)(B)(ii), as failing to state a claim upon which

relief could be granted.

In response to the magistrate judge’s report and

recommendation, Harris wrote to the district court and explained

that he had waited to file his federal suit until he had exhausted

his prison administrative remedies and his state law remedies.

Harris argued that he should be allowed an extension of time in

order to permit his case to go forward. The district court treated

Harris’s letter as an objection to the magistrate judge’s report

and recommendations, adopted the magistrate judge’s report and

recommendation, and, without requiring the defendants to answer,

dismissed Harris’s federal claims with prejudice on May 21, 1998.

Harris filed a timely notice of appeal. Before this

court, Harris renews his contention that he timely filed his

federal suit because prescription was equitably tolled while his
 

2 Harris argues that tolling applies both to the time during

which he pursued his administrative remedies and to the time during

which he pursued his state court lawsuit. Because Harris filed his

federal complaint within one year of the final action on his

administrative complaint, we need not reach the question of whether

the pendency of the state lawsuit tolled the prescriptive period.

6

prison administrative claims were pending in the Louisiana

Department of Corrections. We agree.2

II. THE STANDARD OF REVIEW

The Prison Litigation Reform Act (PLRA) of 1995, Pub. L.

No. 104-134, 110 Stat. 1321, amended 28 U.S.C. § 1915(e)(2)(B)(i)

and (ii) to require a district court “to dismiss [an] in forma

pauperis (IFP) prisoner civil rights suit[] if the court determines

that the action is frivolous or malicious or does not state a claim

upon which relief may be granted.” Black v. Warren, 134 F.3d 732,

733 (5th Cir. 1998) (citing Mitchell v. Farcass, 112 F.3d 1483,

1489-90 (11th Cir. 1997)). This court reviews dismissals based on

section 1915(e)(2)(B)(ii) under the same de novo standard of review

applicable to dismissals made pursuant to Federal Rule of Civil

Procedure 12(b)(6). See Black, 134 F.3d at 734. “A district

court’s dismissal of a complaint under this subsection may be

upheld only if, taking the plaintiff’s allegations as true, it

appears that no relief could be granted based on the plaintiff’s

alleged facts.” Bass v. Parkwood Hosp., 180 F.3d 234, 240 (5th

Cir. 1999) (citing Bradley v. Puckett, 157 F.3d 1022, 1025 (5th

Cir. 1998)). 

Under section 1915(e)(2)(B)(i), a district court may

dismiss as frivolous a prisoner’s IFP complaint if it lacks any
7

arguable basis in law or fact. See Neitzke v. Williams, 490 U.S.

25, 319-325 (1989); Harper v. Showers, 174 F.3d 716, 718 (5th Cir.

1999); McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998).

“A complaint lacks an arguable basis in law if it is based on an

indisputably meritless legal theory, such as if the complaint

alleges violation of a legal interest which clearly does not

exist.” Harper, 174 F.3d at 718 (quoting Davis v. Scott, 157 F.3d

1003, 1005 (5th Cir. 1998); see also Spicer v. Collins, 9 F.

Supp.2d 673, 687 (E.D. Tex. 1998) (dismissing an inmate’s claim

that he was denied one meal and forced to work on an empty

stomach). A complaint is factually frivolous when “the facts

alleged are ‘fantastic or delusional scenarios’ or the legal theory

upon which a complaint relies is ‘indisputably meritless.’” Eason

v. Thaler, 14 F.3d 8,9 n.5 (5th Cir. 1994) (quoting Neitzke, 490

U.S. at 327-28).

In an action under section 1915, a district court may

raise the defense of limitations sua sponte. See Gartrell v.

Gaylor, 981 F.2d 254, 256 (5th Cir. 1993) (citing Ali v. Higgs, 892

F.2d 438, 440 (5th Cir. 1990); Burrell v. Newsome, 883 F.2d 416,

418 (5th Cir. 1989)). Dismissal is appropriate if it is clear from

the face of the complaint that the claims asserted are barred by

the applicable statute of limitations. See id.

III. THE LIMITATIONS ANALYSIS

Federal courts borrow state statutes of limitations to

govern claims brought under section 1983. See Burge v. Parish of

St. Tammany, 996 F.2d 786, 788 (5th Cir. 1993) (citing Hardin v.
8

Straub, 490 U.S. 536, 538-39 (1989); Jackson v. Johnson, 950 F.2d

263, 265 (5th Cir.1992)). Although federal courts look to federal

law to determine when a civil rights action accrues, see Jackson v.

Johnson, 950 F.2d at 265, state law supplies the applicable

limitations period and tolling provisions. See Gartrell, 981 F.2d

at 257 (“In applying the forum state’s statute of limitations, the

federal court should also give effect to any applicable tolling

provisions.”). Under federal law, a section 1983 action generally

accrues when a plaintiff “knows or has reason to know of the injury

which is the basis of the action.” Jackson, 950 F.2d at 265

(internal quotation marks omitted) (quoting Burrell v. Newsome, 883

F.2d 416, 418 (5th Cir.1989)).

Without tolling, Harris’s suit is clearly prescribed.

Harris’s allegations establish that he knew in October 1996 of the

refusal to provide him medical care and the identity of the persons

he believed responsible for the refusal. The question is whether

the pendency of Harris’s state administrative proceedings tolled

the prescriptive period.

Because Harris is a state prisoner proceeding in forma

pauperis, his action is governed by 42 U.S.C. § 1997e. The PLRA,

which took effect on April 26, 1996, significantly amended section

1997e. Under the pre-PLRA version of section 1997e, federal

district courts had discretionary authority to require a prisoner

to exhaust administrative remedies inside the prison system when

“appropriate and in the interests of justice,” 42 U.S.C. §

1997e(a)(1994), and when the administrative remedies provided were
 

3 This court has previously held that the exhaustion

requirement under amended section 1997e is not jurisdictional. See

Underwood, 151 F.3d at 293-95. “Rather, the amended statute

imposes a requirement, rather like a statute of limitations, that

may be subject to certain defenses such as waiver, estoppel, or

equitable tolling.” Wendell, 162 F.3d at 890 (citing Underwood,

151 F.3d at 294-95).

9

“plain, speedy, and effective.” The PLRA removed this discretion.

Section 1997e now provides that:

[n]o action shall be brought with respect to prison

conditions under section 1983 of this title, or any other

Federal law, by a prisoner confined in any jail, prison,

or other correctional facility until such administrative

remedies as are available are exhausted.

42 U.S.C. § 1997e(a) (West Supp. 1999).

Section 1997e clearly requires a state prisoner to

exhaust available administrative remedies before filing a section

1983 suit and precludes him from filing suit while the

administrative complaint is pending. Wendell v. Asher, 162 F.3d

887, 890 (5th Cir. 1998). “Congress unambiguously expressed its

intent that exhaustion be generally imposed as a threshold

requirement in prisoner cases.” Id.; see also Underwood v. Wilson,

151 F.3d 292, 296 (5th Cir. 1998).

3

This court has held that “[a] district court should not

require exhaustion under section 1997e if the prisoner seeks only

monetary damages and the prison grievance system does not afford

such a remedy.” Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir. 1998)

(internal quotation marks omitted) (quoting Marsh v. Jones, 53 F.3d

707, 710 (5th Cir. 1995). The Louisiana Legislature enacted LA.

REV. STAT. ANN. § 15:1171-79 (West Supp. 1999) as an express

authorization for the Louisiana Department of Public Safety and

Corrections (LDPSC) to promulgate administrative complaint

procedures for the prison system. See Marsh v. Jones, 53 F.3d at

711. Since 1989, the statute has explicitly granted authority to
 

4 The courts of appeals have divided over the question of

whether a prisoner seeking solely monetary damages has a duty to

exhaust when the state prison system does not provide monetary

damages as a remedy. This court and the Ninth and Tenth Circuits

do not require exhaustion when monetary damages are sought but such

a remedy is unavailable. See Whitley v. Hunt, 158 F.3d at 886;

Lunsford v. Jumao-As, 155 F.3d 1178, 1179 (9th Cir.1998); Garrett

v. Hawk, 127 F.3d 1263, 1267 (10th Cir.1997). The Sixth, Seventh,

and Eleventh Circuits do require exhaustion. See Lavista v.

Beeler, 1999 WL 970372 at *3 (6th Cir. 1999); Perez v. Wisconsin

Dep’t of Corrections, 182 F.3d 532, 537 (7th Cir. 1999); Alexander

v. Hawk, 159 F.3d 1321, 1326-28 (11th Cir.1998). Because Louisiana

has provided for monetary remedies in its administrative review

system, the circuit split is not relevant to the disposition of

this appeal. 

10

the LDPSC to award monetary damages to inmates who prevail in their

administrative complaints. Harris invoked an administrative

procedure under which he could, and did, seek monetary damages as

a remedy. Whitley v. Hunt is therefore not applicable. See Marsh

v. Jones, 53 F.3d at 711 (citing Gibson v. Barnes, 597 So.2d 176,

177 (La. Ct. App. 1992).4 In this federal civil rights suit,

Harris seeks monetary damages from members of the prison medical

staff for their alleged deliberate indifference to his serious

medical needs. Under the PLRA and this court’s precedent, Harris

had to exhaust the administrative remedies the Louisiana

Legislature established for the prison system. See Wendell, 162

F.3d at 892 (affirming the “district court’s dismissal of

[plaintiff’s] claims for failure to exhaust administrative remedies

prior to filing suit as required by 42 U.S.C.A. § 1997e”).

In Rodriguez v. Holmes, 963 F.2d 799 (5th Cir. 1992),a

prisoner civil rights suit filed in Texas, this court held that the

Texas statute of limitations was tolled while the plaintiff

exhausted his available state administrative remedies. Louisiana

law similarly recognizes required exhaustion of administrative

remedies as a ground to toll prescription. The Louisiana Civil

Code, Article 3492, establishes a one-year liberative prescription
 

5 Louisiana courts refer to this suspension of prescription

as the doctrine of contra non valentem agere nulla praescriptio.

Burge, 996 F.2d at 788.

11

for civil actions sounding in tort. See LA. CIV. CODE ANN. art. 3492

(1994); cf. Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir. 1989)

(affirming an application of article 3492 to a section 1983 claim).

“Prescription runs against all persons unless an exception is

established by legislation.” LA. CIV. CODE ANN art. 3467 (1994).

Louisiana courts do not apply prescription against a party who is

legally unable to act.5 See Burge, 996 F.2d at 788 (5th Cir. 1993)

(citing Plaquemines Parish Comm’n Council v. Delta Dev. Co., 502

So.2d 1034, 1055-56 (La. 1987)). “This doctrine, probably founded

on the principles of equity, justice, fairness, or even natural law

suspends the running of prescription when the ‘plaintiff was

effectually prevented from enforcing his rights for reasons

external to his own will.’” FDIC v. Caplan, 874 F. Supp. 741, 745

(W.D. La. 1995) (quoting Wimberly v. Gatch, 635 So.2d 206, 211 (La.

1994)). Once a plaintiff becomes legally capable of bringing an

action to vindicate or enforce his rights, prescription resumes.

See LA. CIV. CODE ANN. art. 3472 (1994).

Louisiana courts recognize four distinct factual

situations involving a legal inability to act which may toll

prescription: 

(1) when courts are legally closed; (2) when

administrative or contractual restraints delay the

plaintiff’s action; (3) when the defendant prevents the

plaintiff from bringing suit; and (4) when the plaintiff

does not know nor reasonably should know of the cause of

action. 

In re Medical Review Panel Proceeding Vaidyanathan, 719 So.2d 604,

607 (La. Ct. App. 1998); see also Burge, 996 F.2d at 788.

Harris could not file this federal civil rights suit

until he exhausted the available state administrative remedies, as
12

section 1997e requires. This exhaustion requirement functioned as

a “legal cause which prevented the courts or their officers from

taking cognizance of or acting on the plaintiff’s action.” Id.

(prescription tolled during exhaustion of state habeas remedies);

see also Whitley v. Hunt, 158 F.3d at 886. While Harris pursued

his administrative remedies from October 24, 1996, to July 14,

1997, the prescriptive period was tolled. Harris timely filed this

federal civil rights claim within one year after the prescriptive

period began to run. Harris’s civil rights claims are not barred

by prescription and his complaint cannot be said to lack “an

arguable basis in law.” Section 1915(e)(2)(B)(i) does not provide

a basis to dismiss Harris’s complaint.

IV. THE CLAIM FOR DELIBERATE INDIFFERENCE

The magistrate judge recommended dismissal of Harris’s

suit under both sections 1915(e)(2)(B)(i) and (ii). The remaining

question is whether Harris’s complaint states a claim upon which

relief may be granted. We conclude that his complaint does allege

facts that present a cognizable claim for relief.

“[I]nadequate medical care by a prison doctor can result

in a constitutional violation for purposes of a § 1983 claim when

that conduct amounts to deliberate indifference to [the prisoner’s]

serious medical needs, constitut[ing] the unnecessary and wanton

infliction of pain proscribed by the Eighth Amendment.” Stewart v.

Murphy, 174 F.3d 530, 533 (5th Cir. 1999) (internal quotation marks

omitted) (alterations in original) (quoting Estelle v. Gamble, 429

U.S. 97, 104 (1976)). Under the “deliberate indifference”
13

standard, a prison official is not liable for the denial of

medical treatment “unless the official knows of and disregards an

excessive risk to inmate health or safety”. Stewart, 174 F.3d at

534 (citing Estelle, 429 U.S. at 104). While malpractice and

negligent treatment do not rise to the level of a constitutional

tort, see Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993), a

claim of “unnecessary and wanton infliction of pain repugnant to

the conscience of mankind,” can state a claim of a constitutional

tort. McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)

(citing Estelle, 429 U.S. at 105-106).

In Estelle, the Supreme Court concluded:

[D]eliberate indifference to serious medical needs of

prisoners constitutes the “unnecessary and wanton

infliction of pain” proscribed by the Eighth Amendment.

This is true whether the indifference is manifested by

prison doctors in their response to the prisoner’s needs

or by prison guards in intentionally denying or delaying

access to medical care or intentionally interfering with

the treatment once prescribed. Regardless of how

evidenced, deliberate indifference to a prisoner’s

serious illness or injury states a cause of action under

§ 1983.

Estelle, 429 U.S. 97, 104-05 (citation omitted, footnotes omitted).

To state an Eighth Amendment claim, a plaintiff must

allege a deprivation of medical care sufficiently serious to show

that “the state has abdicated a constitutionally-required

responsibility to attend to his medical needs,” Bienvenu v.

Beauregard Parish Police Jury, 705 F.2d 1457, 1460 (5th Cir. 1983),

and that a prison official knew of and disregarded “an excessive

risk to inmate health or safety.” Stewart v. Murphy, 174 F.3d 530,

533 (5th Cir. 1999) (quoting Farmer v. Brennan, 511 U.S. 825, 837
14

(1994) “For an official to act with deliberate indifference, ‘the

official must both be aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.’” Smith v. Brenoettsy, 158 F.3d 908,

912 (5th Cir. 1998) (quoting Farmer, 511 U.S. at 837). “Under

exceptional circumstances, a prison official’s knowledge of a

substantial risk of harm may be inferred by the obviousness of the

substantial risk.” Reeves v. Collins, 27 F.3d 174, 176 (5th Cir.

1994) (citing Farmer, 511 U.S. at 842 & n.8). 

In this case, Harris alleges that the repair of his

broken jaw had failed before he even left the surgery clinic. He

alleges that Dr. Hegmann and nurses Boyd and James ignored his

urgent and repeated requests for immediate medical treatment for

his broken jaw and his complaints of excruciating pain. Harris

alleges facts demonstrating that all three defendants were made

aware of, and disregarded, a substantial risk to Harris’s health

when they denied him treatment. Harris’s factual allegations

satisfy both the objective and subjective components of an Eighth

Amendment claim; he states a claim upon which relief may be

granted.

V. CONCLUSION

We hold that the Louisiana prescription period was tolled

during the pendency of Harris’s administrative complaint. Harris

timely filed this suit in federal district court within one year

after he received final notice that his administrative complaint

was dismissed. Harris’s factual allegations state an Eighth
15

Amendment deliberate indifference claim against each of the

defendants. The dismissal of Harris’s claims is REVERSED and this

case is REMANDED the matter for further proceedings.

REVERSED and REMANDED.