# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 26, 2014 *

Decided December 17, 2014

Before

ANN CLAIRE WILLIAMS, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 14

‐ 2485

CLARENCE GIVENS,

Plaintiff

‐ Appellant

,

v

.

KENNETH LUEDTKE, et al.,

Defendants

‐ Appellees

. Appeal from the

United States District Court for the

Western District of Wisconsin.

No. 13

‐ cv

‐ 848

‐ wmc

William M. Conley,

Chief Judge

.

O R D E R

Clarence Givens, a Wisconsin prisoner, appeals from the dismissal of his

civil

‐ rights suit against a prison dentist and two administrators in the prison’s health

‐

* The defendants were not served with process in the district court and are not

participating in this appeal. After examining the appellant’s brief and the record, we

have concluded that the case is appropriate for summary disposition. See F ED

. R. A PP

.

P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1No. 14

‐ 2485 Page 2

services unit. He alleges that the defendants unconstitutionally delayed dental care for

two months from January 2007 to March 2007, in violation of the Eighth Amendment.

Because Givens’s suit is untimely, we affirm.

For the purpose of this appeal, we assume the truth of the facts alleged in

Givens’s complaint and any consistent elaboration of those facts in his appellate brief.

See Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 555 (7th Cir. 2012). After prison dentist

Kenneth Luedtke performed a root canal on one of Givens’s teeth on January 19, 2007,

Givens sought additional care. The next week he again saw Luedtke, who evaluated a

lesion on the roof of Givens’s mouth and told him that he needed to see an oral surgeon

for it. Three days later Givens requested emergency dental services with Luedtke for his

mouth pain, and the next day Luedtke prescribed anti

‐ inflammatories for Givens. Three

days after that, Givens sent another emergency request to Luedtke, reporting that he was

still in extreme pain. A week later, Luedtke extracted Givens’s problematic tooth and

noted that the lesion in Givens’s mouth was healing. After a few more days, Givens filed

with Luedtke yet another emergency request for treatment, this time stating that another

“knot” had formed in his mouth and was causing pain. He also reminded Luedtke that

he needed to send Givens to an oral surgeon to treat his mouth lesion.

Givens’s mouth was not examined again until a month later. At that time

(March 8, 2007), a bone was protruding through a hole in his mouth and was gushing

pus and blood. Five days after this injury, Givens saw an ear, nose, and throat doctor at

Waupun Memorial Hospital. The specialist was unable to diagnose Givens’s condition

immediately. Two weeks later Givens saw another specialist who performed a biopsy

and stated that the injury was likely caused by osteomyelitis, a bone infection,

see O STEOMYELITIS

, M AYO C LINIC

, http://www.mayoclinic.org/diseases

‐ conditions/

osteomyelitis/basics/definition/con

‐ 20025518 (last visited Dec. 1, 2014), for which Givens

was prescribed penicillin. This diagnosis was later confirmed. Almost two years later, in

January 2009, another dentist told Givens that Dr. Luedtke caused the bone infection by

using unsanitary tools during the root canal.

As a prelude to this federal lawsuit, Givens filed an administrative “inmate

complaint.” He asserted first that Dr. Luedtke caused the bone infection and second that

Givens experienced severe, unnecessary pain because medical staff did not immediately

send him to an oral surgeon in January 2007. The complaint was dismissed 172 days

later; Givens then filed what he calls a second complaint (it may have been anNo. 14

‐ 2485 Page 3

administrative appeal, but we don’t know because it is not attached), which was

resolved against him 67 days later.

Six years and eight months after the injury of March 8, 2007, Givens placed in the

prison mail system on November 7, 2013, this lawsuit under 42 U.S.C. § 1983 alleging

Eighth Amendment violations. The complaint asserts, first, that Dr. Luedtke is liable for

the bone infection and, second, that he and other medical staff are liable for unjustifiably

delaying from January to March of 2007 referral to an oral surgeon. Givens pursues only

this second claim on appeal.

The district court screened the complaint and dismissed Givens’s suit with

prejudice. S ee 28 U.S.C. § 1915A. The court concluded that both claims were barred by

Wisconsin’s six

‐ year statute of limitations applicable to § 1983 actions, and alternatively,

that Dr. Luedtke was not deliberately indifferent to Givens’s dental needs.

On appeal Givens maintains that the defendants unconstitutionally delayed

treating his mouth for two months in January 2007. He insists that his claim is timely for

two reasons. First, he contends that under Devbrow v. Kalu, 705 F.3d 765, 769–70 (7th Cir.

2013), his claim did not accrue until he learned in January 2009 that Luedtke mishandled

the root canal in January 2007. Second, he argues that the statute of limitations was tolled

while he exhausted administrative remedies over a total of 239 days.

We begin by addressing when Givens’s claim accrued. His claim accrued when he

“kn[e]w[] of his physical injury and its cause

... even if the full extent or severity of the

injury is not yet known.” Id. at 768; see Wallace v. Kato, 549 U.S. 384, 388 (2007). As early as

January 2007, Givens knew that he had a painful mouth lesion that required a specialist.

And by March 8, 2007, Givens knew that he had another serious injury. That is when his

mouth was spewing blood and pus, which led (five days later) to the specialist’s

treatment that Givens had been seeking for the prior two months. Devbrow does not alter

this accrual analysis. In that case, an inmate alleged that prison doctors delayed treating

his prostate cancer because they did not order a biopsy until after the cancer had

metastasized. 705 F.3d at 766. We concluded that his claim could not have accrued until

he received his cancer diagnosis because he could not have known of the injury any

sooner. Id. at 770. But here, by March 8, 2007, Givens knew that his mouth was seriously

damaged after a two

‐ month delay of a specialist’s treatment.

Givens also knew before March 8, 2007, that Dr. Luedtke and his staff caused the

delay in sending him to an oral surgeon to examine his mouth. According to his

allegations, in February 2007 he sent to Luedtke his emergency request for treatment. InNo. 14

‐ 2485 Page 4

it he explicitly faulted Dr. Luedtke for not sending him to an oral surgeon to examine his

mouth, as Luedtke himself had suggested in January. Givens replies that he learned only

in January 2009 that Dr. Luedtke caused his mouth infection. But this knowledge is

irrelevant to his claim that Dr. Luedtke and his staff unconstitutionally delayed sending

him to an oral surgeon for two months in January 2007. Givens knew of that injury (the

two

‐ month delay) and its cause (Dr. Luedtke’s disregard of Givens’s request for a

specialist) by, at the latest, March 8, 2007.

With the accrual date established as March 8, 2007, we turn to whether Givens’s

claim is timely under Wisconsin’s six

‐ year personal rights statute of limitations, see W IS

.

S TAT

. § 893.53, the residual statute for personal

‐ injury actions, which we have adopted

for use in § 1983 actions in that state, see Malone v. Corr. Corp. of Am., 553 F.3d 540, 542 (7th

Cir. 2009); Gray v. Lacke, 885 F.2d 399, 407–09 (7th Cir. 1989). Six years from March 8,

2007, is March 8, 2013. Givens correctly notes that his claim was tolled while he

exhausted administrative remedies. S ee W IS

. S TAT

. § 893.23; Johnson v. Rivera, 272 F.3d

519, 521–22 (7th Cir. 2001). We will assume that his two administrative complaints were

not duplicative and that the second was an internal appeal of the first. But even if we add

onto March 8, 2007, the 239 days that Givens asserts was spent exhausting

administrative remedies, the limitations period would have expired on November 2,

2013—nine days before Givens placed his complaint in the prison mail system. Thus, as

the district court correctly ruled, Givens’s claim is time

‐ barred.

AFFIRMED.