Delbert Heard v. Willard Elyea , 525 F. App'x 510 ( 2013 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 30, 2013*
Decided June 3, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12-3397
Appeal from the United
DELBERT HEARD,
States District Court for the
Plaintiff-Appellant,
Southern District of Illinois.
v.
No. 3:09-cv-00449-JPG-PMF
WILLARD ELYEA, J. Phil Gilbert, Judge.
Defendant-Appellee.
Order
Dissatisfied with the medical care he received while in prison, Delbert Heard filed
suit under 42 U.S.C. §1983 against multiple state actors, including Willard Elyea, former
medical director of the Illinois Department of Corrections. The district court entered
summary judgment in Elyea’s favor while allowing the suit to proceed against other de-
fendants. 2011 U.S. Dist. LEXIS 116069 (S.D. Ill. June 28, 2011) (recommendation), 2011
U.S. Dist. LEXIS 109585 (S.D. Ill. Sept. 26, 2011) (order adopting recommendation). Even-
tually all other defendants settled with Heard, making the judgment final with respect
to Elyea. Heard then filed this appeal.
* After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 12-3397 Page 2
Because the district court ruled in Elyea’s favor under the statute of limitations, the
record contains little evidence about what Elyea is supposed to have done wrong. Elyea
was the head of a department, not Heard’s treating physician, and §1983 does not au-
thorize vicarious liability against supervisors. See Ashcroft v. Iqbal, 556 U.S. 662, 676–77
(2009). But we need not consider whether Heard’s complaint is compatible with Iqbal,
because we agree with the district court’s conclusion that it is untimely.
Heard had been suffering from two painful hernias for several years when he ar-
rived at Menard Correctional Center in March 2006. The medical staff at Menard de-
clined to authorize surgery until May 2007. The surgeon remarked at the time that an
earlier intervention would have been appropriate. Heard filed this suit three days short
of two years after the surgery took place—and in Illinois the statute of limitations is two
years, tracking the state’s general time limit for personal-injury litigation. See Wilson v.
Garcia, 471 U.S. 261 (1985); 735 ILCS 5/13-202. We assume for current purposes that
Heard’s claim against the medical staff at Menard accrued on the date of surgery. See
Devbrow v. Kalu, 705 F.3d 765 (7th Cir. 2013). But Elyea had retired three weeks earlier.
The district court concluded that the claim against Elyea accrued no later than his re-
tirement, because thereafter he could not help or hurt any inmate. Heard filed his suit
more than two years after Elyea’s retirement and so missed the deadline.
Heard invokes what he and the district court called the “continuing violation doc-
trine”, under which misconduct that causes (or fails to solve) a continuing injury is
treated as if the claim accrues, not with any of the wrongful acts, or with the first mani-
festation of injury, but with injury’s elimination. It is not clear that federal law has such
a doctrine—or that, if it once did, the doctrine survived Ledbetter v. Goodyear Tire & Rub-
ber Co., 550 U.S. 618 (2007), and National Railroad Passenger Corp. v. Morgan, 536 U.S. 101(2002). Normally a federal claim accrues when injury begins (or is discovered), not
when it ends. See United States v. Kubrick, 444 U.S. 111 (1979).
Our pre-Morgan decisions discussing the “continuing violation doctrine” recognized
that the termination of injury is not the sole trigger for a claim’s accrual. We held in
Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001), that, even when injury is ongoing, a
claim against any particular person accrues immediately when that person loses the
ability “to do something about [the plaintiff’s] condition”. (The plaintiff in this suit was
the plaintiff in Heard v. Sheahan too.) This means, we concluded in 2001, that, when a
person resigns or retires from his public employment, the claim accrues on that date.
Accord, Shomo v. City of New York, 579 F.3d 176, 182 (2d Cir. 2009); Hensley v. Columbus,
557 F.3d 693, 697 (6th Cir. 2009). Heard seeks to distinguish our 2001 decision on the
ground that he remained at Menard through the date of surgery, but that’s irrelevant to
the point of our 2001 decision. Liability is defendant-specific.
Heard is right to observe that a prisoner may have a hard time knowing when su-
pervisors in a state’s bureaucracy resign or retire. The fact that a prisoner does not
know what, if anything, a supervisor is doing (and therefore cannot tell whether the su-
No. 12-3397 Page 3
pervisor has departed) may show that the claim depends on vicarious liability and is
barred for that reason. At all events, prisoners need not find out immediately. They
have two years from the date a state actor departs to pursue any legal claims they may
have. That is an ample opportunity. See Hall v. Norfolk Southern Ry., 469 F.3d 590, 596
(7th Cir. 2006) (“It is the plaintiff’s responsibility to determine the proper party to sue
and to do so before the statute of limitations expires.”).
AFFIRMED