Memorandum Opinion and Order – Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LINDY RAY MATTHEWS, §

§

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-1408-L

§

WARDEN L.E. FLEMING, et al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

This is a pro se civil rights Bivens action brought by a former federal prisoner, who has been

granted leave to proceed in forma pauperis. Pursuant to 28 U.S.C. § 636(b), and an order of the

court in implementation thereof, the case was referred to United States Magistrate Judge Wm. F.

Sanderson, Jr., for pretrial management, including for review and submission of proposed findings

of fact and recommendation for disposition. On December 7, 2005, the Findings, Conclusions and

Recommendations of the United States Magistrate Judge (the “Report”) were filed, to which

Plaintiff filed objections. 

After an independent review of the pleadings, file, record, applicable law, the magistrate

judge’s findings and conclusions, and consideration of Plaintiff’s Objections, the court determines

that the findings and conclusions of the magistrate judge are correct, and hereby accepts them as

those of the court. 

I. Discussion

In this Bivens action, Plaintiff complains, among other things, that Defendants violated his

constitutional rights from January 11, 2001 until February 6, 2004, during which time they were

 

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deliberately indifferent to his back pain and pre-existing severe shoulder pain and the need for

immediate surgery. The magistrate judge recommended that Plaintiff’s pre-July 2003 Bivens claims

be dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(b) as frivolous because

they are time-barred under the applicable two-year statute of limitations, and that Plaintiff’s postJuly 2003 claims be dismissed without prejudice pursuant to 42 U.S.C. § 1997(e)(A) for failure to

exhaust administrative remedies. The magistrate judge further recommended that the district court

decline to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims pursuant

to 28 U.S.C. § 1367. 

In his Objections, Plaintiff contends that the statute of limitations in his Bivens action should

begin to run on the date Plaintiff’s administrative remedies were exhausted, which he contends was

July 16, 2003. See Obj. at 5. As the magistrate judge correctly found, this is not the law. See

Report at 3 (and cases cited therein). A Bivens action is controlled by the applicable state statute

of limitations and accrues when the plaintiff knows or has reason to know of the injury which is the

basis of the action. In this case, it is undisputed that Plaintiff knew, or had reason to know, of the

injury which is the basis of the action on his pre-July 2003 claims on February 5, 2003, on which

date the statute of limitations would begin to run. As the magistrate judge correctly found, the

statute of limitations therefore expired two years later, on February 4, 2005, more than five months

before Plaintiff filed suit. Accordingly, the court overrules Plaintiff’s objection regarding the

applicable statute of limitations on his pre-July 2003 claims. Plaintiff also appears to argue that he

should not be subject to the requirement that he exhaust his administrative remedies. Once again,

this is not the law. See Report at 4-5 (and cases cited therein). Accordingly, the court overrules

Plaintiff’s objection regarding exhaustion of administrative remedies. 

 

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II. Conclusion

For the reasons herein stated, the court overrules Plaintiff’s Objections to the Findings,

Conclusions and Recommendations of the magistrate judge. The court determines that the findings

and conclusions of the magistrate judge are correct, and accepts them as those of the court.

Accordingly, the court dismisses with prejudice Plaintiff’s pre-July 2003 Bivens claims pursuant

to 28 U.S.C. §§ 1915(e)(2) and 1915(b) as frivolous because they are time-barred under the

applicable two-year statute of limitations, and dismisses without prejudice Plaintiff’s post-July

2003 claims pursuant to 42 U.S.C. § 1997(e)(A) for failure to exhaust administrative remedies.

Further, the court declines to exercise supplemental jurisdiction over Plaintiff’s state law claims and

hereby dismisses them without prejudice. See 28 U.S.C. § 1367. 

A final judgment dismissing this case in accordance with the foregoing will issue by separate

document. 

It is so ordered this 28th day of February, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

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