Charles Gould, Jr. v. Mark Bertoncini

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 22, 2023 *
Decided February 23, 2023
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 21-2776
CHARLES GOULD, JR.,
Plaintiff-Appellant,
v.
MARK BERTONCINI,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Indiana, Hammond Division.
No. 2:21-CV-114-PPS-JPK
Phillip P. Simon,
Judge.
O R D E R
Charles Gould, Jr., appeals the judgment dismissing his Bivens suit without
prejudice for want of prosecution. But because the judgment was not a final order, we
dismiss the appeal for lack of jurisdiction.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 21-2776 Page 2
As Gould alleged in his complaint, he injured his left shoulder in May 2019 while
detained in an Indiana jail awaiting a federal trial. Gould experienced persistent pain
from the injury through 2019. Initial treatment did not help, so in 2020 his doctor
recommended that Gould undergo a test to assess the need for surgery. According to
Gould, Deputy U.S. Marshal Mark Bertoncini denied the request because the procedure
was too expensive. Further attempts by Gould and a nurse practitioner to obtain
approval were similarly rebuffed by Deputy Bertoncini, who denied the last request in
March 2021.
The following month, Gould sued Deputy Bertoncini under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for objectively
unreasonable care in response to his medical needs. The district judge screened the
complaint, see 18 U.S.C. § 1915A, and allowed Gould to proceed on his claim. Shortly
afterward, however, the judge encountered difficulties communicating with Gould.
Court orders that had been sent to Gould at the Metropolitan Correctional Center in
Chicago were returned as undeliverable. A magistrate judge ordered Gould to show
cause why the case should not be dismissed for want of prosecution, and the deadline
passed with no response.1 Two weeks later, the district judge dismissed the case
without prejudice for want of prosecution under Rule 41(b) of the Federal Rules of Civil
Procedure, stating that Gould had abandoned the case because he had not provided an
updated address.
Gould filed a notice of appeal, followed by a motion in the district court for leave
to appeal in forma pauperis. The district judge denied the motion on the ground that the
appeal had no basis because the dismissal was not an appealable final order.
Gould now argues that the dismissal was final as a practical matter because a
newly filed complaint would be barred under Indiana’s two-year statute of limitations
for Bivens actions. See King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 913 (7th Cir.
2000); IND. C ODE § 34-11-2-4(a)(1). But Gould is mistaken about the application of the
statute of limitations. The two-year limitations period did not start to run until the date
of the “last incidence” of the ongoing violation—Deputy Bertoncini’s refusal in March
1 Gould explains in his appellate brief that he did not respond to the show-cause
order because after arriving at the Metropolitan Correctional Center, he was repeatedly
transferred between prisons and kept in quarantine, where he could not purchase
envelopes or stamps.

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No. 21-2776 Page 3
2021 to authorize the test. Cesal v. Moats, 851 F.3d 714, 722 (7th Cir. 2017) (quotation
marks omitted). In other words, Gould has until March 2023 to refile his claim.
Gould also suggests that the dismissal was final because the judge was finished
with the case. See Gleason v. Jansen, 888 F.3d 847, 852 (7th Cir. 2018). But that suggestion
is belied by the judge’s explanation for denying Gould’s motion for leave to appeal
in forma pauperis. There, the judge expressly stated that the dismissal was not final and
therefore not appealable.
We have considered Gould’s other arguments, but none has merit. Therefore, we
DISMISS the appeal for lack of appellate jurisdiction. Because Gould must act quickly if
he intends to refile his case before the limitations period expires, we hereby ORDER the
Clerk of this court to immediately issue the mandate. See FED. R. APP. P. 41(b).

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