*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-30420

Summary Calendar

 

MICHAEL E. KENNEDY,

Plaintiff-Appellant,

versus

G. L. HENMAN; ET AL.,

Defendants,

MICHAEL E. KENNEDY,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA; ET AL.,

Defendants,

UNITED STATES OF AMERICA,

Defendant-Appellee.

 

Appeal from the United States District Court

For the Western District of Louisiana

96-CV-835

 

March 1, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Michael E. Kennedy appeals the dismissal of his two Bivens
1 Leavell v. Kieffer, 189 F.3d 492, 494 (7th Cir. 1999)

(Easterbrook, J.).

2 McGuire v. Turnbo, 137 F.3d 321, 324 (5th Cir. 1998).

3 Castro Romero v. Becken, 256 F.3d 349, 354 (5th Cir. 2001).

2

claims, the grant of summary judgment on two claims under the

Federal Tort Claims Act (FTCA), and the refusal to appoint counsel.

Kennedy claims that his in forma pauperis complaint should not

have been dismissed because application of the Prison Litigation

Reform Act ("PLRA") violates the Ex Post Facto Clause. The district

court dismissed Kennedy’s Bivens claim as untimely under the

applicable statute of limitations. The application of the PLRA

served as the procedural framework, but was not the reason that his

claim was dismissed.

Kennedy also argues that the date of accrual for a

Bivens claim should be consistent with the statute of limitations

governing FTCA claims. This claim is without merit. Federal law

defines the accrual of a Bivens claim, and under federal law the

time begins to run when the plaintiff knows that he has been

injured.1 We look to state law to determine the applicable

limitations period.2

Kennedy claims that the district court should not have denied

the appointment of counsel and failed to explain its reasons for

denying the appointment of counsel. We review the denial of

appointment of counsel for abuse of discretion.3 Denial of
3

appointment of counsel was appropriate, and the district court

adequately stated its reasons for doing so. The district court did

not abuse its discretion. Moreover, the district court also

permitted sufficient discovery in the form of requests for

admissions, interrogatories, and requests for the production of

documents.

Kennedy argues that the district court erred in granting

summary judgment. Kennedy contends that his testimony and the

testimony of the defendants were contradictory as to when the

decision was made to move the cellmate and why it was not done. The

district court did not grant summary judgment on his failure to

protect claim. The Bivens claim was dismissed as prescribed, and

the FTCA claim went to trial.

Kennedy argues that his affidavit called into question

“defendant’s lack of response to use of a stretcher, delay in

treatment after diagnosis as a possible femur fracture, and denial

of the medical treatment prescribed by use of an informal and

unwritten policy.” The evidence showed that after the fight Kennedy

was transported to the infirmary by an electric cart, that a

possible femur fracture was assessed on Saturday, July 15, and he

was referred for x-rays on Monday, July 17. Defendants admit that

Kennedy was denied permission to attend his outside appointment

because he refused to use the black box restraints.

Kennedy argues that the facts establish that the defendants
4

were deliberately indifferent to his serious medical needs. More

specifically, Kennedy claims that the delay in treatment from

Saturday to Monday established deliberate indifference. Kennedy was

examined on a Saturday night, at which time a possible fracture was

diagnosed. Pain medication and warm soaks were prescribed. Kennedy

was brought in for x-rays on Monday, and he had surgery on Tuesday.

These facts do not suggest that the one-day delay in getting the xrays was due to deliberate indifference.

Kennedy argues that the district court improperly applied an

excessive force standard to dismiss his deliberate indifference

claim. The district court found that the requirement of the black

box and the denial of the outside appointment when he refused to

use the black box did not amount to deliberate indifference. The

district court applied the appropriate standard, and properly

dismissed Kennedy’s claim.

AFFIRMED.