FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JANUARY 18, 2011

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-14515

Non-Argument Calendar

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D. C. Docket No. 07-00111-CV-WLS-1

JAYSON TERRELLE COMBS,

Plaintiff-Appellant,

versus

CYNTHIA NELSON,

KEITH B. JONES,

DEE DEE RAGAN,

Head Medical Director at Autry State

Prison from July 2003 to November 2005,

SARAH DRAPER,

Defendants-Appellees,

JANE DOE,

Head Medical Director at Autry State

Prison from July 2003 to November 2005,

Defendant,

ELAINE HUTTO, et. al.,

Consol Defendants.
________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(January 18, 2011)

Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.

PER CURIAM:

Jayson Terrelle Combs, a Georgia prisoner proceeding pro se, appeals the

dismissal of his civil rights complaints, 42 U.S.C. § 1983. No reversible error has

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been shown; we affirm.

Combs alleged that several prison officials and employees were deliberately

indifferent to his health and safety by exposing him to active tuberculosis (“TB”),

resulting in his testing positive for latent TB. Combs tested negative for TB upon

his initial entry into the Georgia Department of Corrections (“GDOC”). He also

received a later negative TB skin test after he was transferred to Autry State Prison

(“ASP”), a facility within the GDOC. But in September 2005, an ASP inmate

tested positive for active TB. Prison officials conducted tests on prisoners who had

Combs filed a complaint against certain defendants and later filed an amended complaint 1

against a separate set of defendants. Because the complaints arose from the same facts, the

district court consolidated the proceedings on both complaints.

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been in contact with this inmate, and Combs tested positive for latent TB. Combs

received medication for nine months.

The district court adopted the magistrate judge’s recommendation and

dismissed the later set of defendants on statute of limitations grounds. We review

de novo the district court’s interpretation and application of the statute of

limitations. Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1261 n.2

(11th Cir. 2003). The district court granted the first set of defendants’ motion for

summary judgment because Combs’s fact allegations did not show deliberate

indifference. We review de novo a grant of summary judgment and “apply the

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same legal standards that governed the district court’s analysis.” Penley v.

Eslinger, 605 F.3d 843, 848 (11th Cir. 2010).

The statute of limitations for a section 1983 claim arising out of events

occurring in Georgia is two years. Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir.

2003). A section 1983 claim accrues -- and the statute of limitations begins to run

-- when “the facts which would support a cause of action are apparent or should be

apparent to a person with a reasonably prudent regard for his rights.” Mullinax v.

McElhenney, 817 F.2d 711, 716 (11th Cir. 1987) (citation and internal quotation

The district court also dismissed two defendants because Combs failed to serve them 2

adequately with process. On appeal, Combs does not challenge this determination; and we will

not mention it further. See Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002).

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omitted).

We see no error in the district court’s statute of limitations ruling. Combs

complained about events occurring in September 2005 related to his contraction of

latent TB. So, in September 2005, “the facts which would support a cause of

action” based on his TB test results should have been apparent to Combs. See id.

And he had until September 2007 to file his section 1983 complaint; but he did not

file the complaint against the later set of defendants until February 2008: after the

limitations period had expired.

We are unpersuaded by Combs’s appellate argument that the limitations

period should have been tolled because a delayed response to and an inadequate

investigation of his internal grievance impeded him from timely filing the

complaint against these defendants. “Equitable tolling is a rare remedy to be

applied in unusual circumstances, not a cure-all for an entirely common state of

affairs.” See Wallace v. Cato, 127 S.Ct. 1091, 1098-1100 (2007) (explaining that

state law generally determines tolling rules in section 1983 cases). Combs has not

shown such “unusual circumstances” that would justify equitable tolling,

especially given that he filed a timely complaint against other defendants based on

the same set of facts.

To survive summary judgment on his deliberate indifference claim against

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the remaining defendants, Combs “was required to produce sufficient evidence of

(1) a substantial risk of serious harm; (2) the defendants’ deliberate indifference to

that risk; and (3) causation.” See Hale v. Tallapoosa County, 50 F.3d 1579, 1582

(11th Cir. 1995). We have explained that deliberate indifference has these three

components: “(1) subjective knowledge of a risk of serious harm; (2) disregard of

that risk; (3) by conduct that is more than mere negligence.” Farrow v. West, 320

F.3d 1235, 1245 (11th Cir. 2003). The existence of a policy may constitute

evidence that prison officials were not deliberately indifferent to the risks posed by

exposure to TB. See Helling v. McKinney, 113 S.Ct. 2475, 2482 (1993).

The district court committed no error in granting summary judgment. The

record shows that the GDOC had policies in place mandating (1) TB testing upon

an inmate’s initial intake screening; (2) periodic TB testing thereafter; (3) an

investigation about with whom an inmate, with active TB, has been in contact; (4)

isolation of inmates with active TB; and (5) the administration of INH medication

for nine months for an inmate who receives a positive TB test result to prevent

active TB from developing. The existence of these reasonable policies constitutes

evidence that defendants were not deliberately indifferent to the risks posed by an

inmate’s exposure to TB. See id.

On appeal, Combs contends that defendants did not follow GDOC

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procedures to isolate an inmate who was identified with TB and ignored Combs’s

complaints about this inmate: he states that the infected inmate was allowed to

walk around the general prison population for three months, engaging in close

contact with other inmates. But Combs provided no identity for this inmate or

explain how or when Combs learned of the infected inmate, and Combs submitted

no documentation of a complaint he filed with the GDOC about such an inmate.

The record will not support deliberate indifference. Instead, the record

shows that the GDOC complied with their policies and procedures. Defendants

responded reasonably upon becoming aware that an inmate was infected with

active TB and treated Combs after it was determined that he had been exposed to,

and infected with, latent TB. Combs presented no evidence that defendants

disregarded the risk of inmates’ exposure to TB. That Combs may have disagreed

with the response time or with the underlying policy does not demonstrate

deliberate indifference.

AFFIRMED.

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We reject Combs’s argument that the district court abused its discretion in denying him 3

appointment of counsel. Appointment of counsel in civil cases is a privilege justified only by

exceptional circumstances “such as the presence of facts and legal issues [which] are so novel or

complex as to require the assistance of a trained practitioner.” Kilgo v. Ricks, 983 F.2d 189, 193

(11th Cir. 1993). Here, no such exceptional circumstances existed. 

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