United States District Court

Northern District of Indiana

CHRISTOPHER E. WASHINGTON, )

)

Plaintiff, )

)

v. ) Civil Action No. 3:16-CV-552 JVB 

)

PARKVIEW HOSPITAL, et al., )

)

Defendants. )

OPINION AND ORDER

Christopher E. Washington, a pro se prisoner, filed a complaint pursuant to 42 U.S.C. §

1983 alleging that a physician at Parkview hospital engaged in medical malpractice when he

treated him on September 8, 2008. “A document filed pro se is to be liberally construed, and a

pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and

citations omitted). Nevertheless, pursuant to 28 U.S.C. § 1915A, the court must review the merits

of a prisoner complaint. “In order to state a claim under [42 U.S.C.] § 1983 a plaintiff must

allege: (1) that defendants deprived him of a federal constitutional right; and (2) that the

defendants acted under color of state law.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).

Here, Washington alleges that Dr. David Gertzen acted negligently when he treated

Washington for a broken leg nearly eight years ago. Washington sues both Parkview Hospital

and Dr. Gertzen for money damages. As a threshold matter, it appears that Dr. Gertzen’s actions

did not violate a federal constitutional right and he was not acting under color of state law. See

Polk County v. Dodson, 454 U.S. 312 (1981). Nevertheless, even if Dr. Gertzen were a state

actor, negligence or medical malpractice does not establish a constitutional claim, since “the
Eighth Amendment does not codify common law torts.” Arnett v. Webster, 658 F.3d 742, 751

(7th Cir. 2011) (quoting Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008)). This case

presents no federal claim, and so must be dismissed.

Moreover, any alleged constitutional claim would also be time barred. “Indiana’s

two-year statute of limitations . . . is applicable to all causes of action brought in Indiana under

42 U.S.C. § 1983.” Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 894 (7th

Cir. 2001). Here, Washington’s claim arose on September 8, 2008. Thus, he had until September

8, 2010, to file any federal constitutional claim. However, the complaint was not signed until

August 12, 2016, almost six years after the statute of limitations had expired. Although the

statute of limitations is an affirmative defense, dismissal is appropriate where it is clear that the

claim is time barred. Cancer Foundation, Inc. v. Cerberus Capital Management, LP, 559 F.3d

671, 674 (7th Cir. 2009). Because it has clearly been more than two years since this claim arose,

it must be dismissed. 

The court will dismiss any state law claims contained in the complaint without prejudice

should Washington wish to pursue them in state court. See Doe-2 v. McLean County Unit Dist.

No. 5 Bd. of Dirs., 593 F.3d 507, 513 (7th Cir. 2010) (“Ordinarily, when a district court

dismisses the federal claims conferring original jurisdiction prior to trial, it relinquishes

supplemental jurisdiction over any state-law claims under 28 U.S.C. § 1367(c).”). The court

offers no opinion about the wisdom of pursuing this course or the merit of any potential claim he

may have.

As a final matter, Washington asks the court to waive his filing fee. (DE 3.) This the court

cannot do. Pursuant to 28 U.S.C. § 1915(b)(1), “if a prisoner brings a civil action . . . the prisoner

shall be required to pay the full amount of a filing fee.” Washington was a prisoner when he filed
this lawsuit, therefore he must pay the full filing fee. 

For these reasons, the federal claims contained in the complaint (DE 1) are DISMISSED

WITH PREJUDICE pursuant to 28 U.S.C. § 1915A, and any state law claims contained in the

complaint are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c).

Further, the motion to waive the filing fee is DENIED.

SO ORDERED on September 8, 2016.

 s/ Joseph S. Van Bokkelen 

Joseph S. Van Bokkelen

United States District Judge

Hammond Division