Eugene Devbrow v. Dr. Eke Kalu

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2467
EUGENE DEVBROW,
Plaintiff-Appellant,
v.
DR. EKE KALU, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:07-cv-1355-LJM-TAB—Larry J. McKinney, Judge.
ARGUED OCTOBER 31, 2012—DECIDED FEBRUARY 1, 2013
Before EASTERBROOK, Chief Judge, and WILLIAMS and
SYKES, Circuit Judges.
SYKES, Circuit Judge. This case arises out of a delay by
prison medical staff in ordering a prostate biopsy for a
prisoner. Eugene Devbrow entered the Indiana prison
system in 2000. During the intake process, he told the
medical staff that he had prostate problems and would
need to be tested for prostate cancer within two to
four years. In February 2004 a prison doctor ordered
a PSA test (for “prostate-specific antigen”), which

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2 No. 12-2467
revealed an elevated PSA, but the medical staff did not
order a prostate biopsy until April 2005. In a follow-up
biopsy six months later, Devbrow was diagnosed with
prostate cancer, but by that time the disease had spread
to his spine and treatment options were severely limited.
In October 2007 Devbrow sued two prison doctors
and a prison nurse practitioner under 42 U.S.C. § 1983
for deliberate indifference to his serious medical needs
in violation of the Eighth Amendment. He alleged that
their long delay in ordering a biopsy prevented the dis-
covery of his cancer while the odds of successfully
treating it were still good. The district court entered
judgment for the defendants based on the two-year
statute of limitations. The court construed the claim as
a continuing constitutional violation that began in Feb-
ruary 2004—when, according to Devbrow, his PSA test
and prostate history showed the need for a biopsy—and
ended in April 2005 when the biopsy was ordered. At
that point, the court said, the defendants’ deliberate
indifference ceased, the cause of action accrued, and the
limitations clock started ticking. Because Devbrow filed
suit more than two years later, the court dismissed it
as untimely.
We reverse. The statute of limitations for a § 1983
deliberate-indifference claim brought to redress a
medical injury does not begin to run until the plaintiff
knows of his injury and its cause. Judged by that
standard, Devbrow’s suit is timely. He did not know of
his injury in April 2005 when the defendants finally
ordered a biopsy; he discovered it six months later

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No. 12-2467 3
when he learned he had cancer that might have been
diagnosed and treated earlier but for the defendants’
deliberate indifference. The limitations period runs
from that discovery, and Devbrow filed suit just before
the time expired.
I. Background
The following account is limited to the facts that are
relevant to the statute-of-limitations question, construed
in the light most favorable to Devbrow. Draper v. Martin,
664 F.3d 1110, 1113 (7th Cir. 2011); FED. R. CIV. P. 56(a).
Even before he went to prison in 2000, Devbrow knew
he was at risk for prostate cancer. In 1998 a PSA
test revealed elevated prostate-specific antigen levels. A
follow-up biopsy was benign, but his doctor advised
him to have another test in two to four years. In the
meantime Devbrow was convicted of a crime and sen-
tenced to prison by an Indiana court. When he arrived
at the Pendleton Correctional Facility in May 2000, he
told the intake physician about his prostate history and
that his doctor recommended cancer screening within
two to four years. Four years later, on February 3, 2004,
a prison doctor ordered a PSA test, and the result—a PSA
of 13.3 ng/mL—was significantly elevated above the
level considered to be normal. Nurse Practitioner Kelley
Carroll requested a urology consultation, but Dr. Eke
Kalu, the Regional Medical Director for Prison Health
Services, would not authorize it.
The test was repeated a week later, and again revealed
an elevated PSA of 14.1. Dr. Malak Hermina examined

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4 No. 12-2467
Devbrow, found his prostate enlarged, and requested a
urology consultation. Dr. Kalu again did not authorize
it, but told Dr. Hermina to obtain Devbrow’s outside
medical records. Dr. Hermina began that process and also
ordered an on-site ultrasound. Devbrow had the ultra-
sound in early March and met with Dr. Hermina to
discuss the results. Based on the test results and
his clinical examination, Dr. Hermina again recom-
mended a urology consultation. Dr. Kalu again denied
it and instead treated Devbrow for benign prostate hy-
perplasia.
Devbrow did not have another PSA test until a year
later, on February 10, 2005, and by this time his PSA
level had risen to 18.1. Dr. Hermina again requested a
urology consultation and also recommended a biopsy.
Devbrow was taken to the hospital to see a urologist and
on April 27, 2005, had a prostate biopsy, which revealed
high-grade prostatic intraepithelial neoplasia, a precursor
to prostate cancer. A follow-up biopsy on September 25,
2005, confirmed that Devbrow had prostate cancer. Ac-
cording to Devbrow’s account of the facts, which we
accept at this stage and the defendants do not dispute
“for purposes of the statute of limitations,” he received
the cancer diagnosis on October 21, 2005. A bone scan
in December revealed that the cancer had spread
to Devbrow’s spine and no longer was operable.
Devbrow learned of the metastasis on December 16,
2005. Treatment options for metastatic prostate cancer
are limited, and the ten-year survival rate is less than 15%.
On October 19, 2007, Devbrow sued Drs. Kalu and
Hermina and Nurse Practitioner Carroll under § 1983 for

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No. 12-2467 5
deliberate indifference to his medical needs in violation
of the Eighth Amendment. He alleged that their delay
in ordering a prostate biopsy prevented the diagnosis of
his cancer until after it had metastasized. Hermina and
Carroll moved for summary judgment, arguing that
Devbrow’s suit was untimely under the two-year statute
of limitations. Kalu moved to dismiss on the same
ground. The district court granted the motions, holding
that the limitations period commenced on April 27, 2005,
when Devbrow was referred for a biopsy. At this point,
the court held, the defendants ceased being indifferent
to his medical needs and the statute of limitations
started to run. Counting the time from that date,
Devbrow’s suit was six months too late. The court entered
judgment for the defendants, and this appeal followed.
II. Discussion
For claims brought under § 1983, we borrow the limita-
tions period and tolling rules applicable to personal-injury
claims under state law. Richards v. Mitcheff, 696 F.3d 635,
637 (7th Cir. 2012). The pertinent Indiana statute of limita-
tions is two years. Id.; IND. CODE § 34-11-2-4. Accrual rules,
however, are governed by federal law “conforming in
general to common-law tort principles.” Wallace v. Kato,
549 U.S. 384, 387-88 (2007). There is no single accrual
rule for all § 1983 claims. Rather, we use the rule that
applies to the common-law cause of action most similar
to the kind of claim the plaintiff asserts. Id. at 388
(drawing on the “distinctive treatment of the torts of
false arrest and false imprisonment, the causes of action

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6 No. 12-2467
that provide the closest analogy to claims of the type
considered here” (internal quotation marks and altera-
tions omitted)).
The tort claim most closely analogous to a deliberate-
indifference claim premised on a medical error is
medical malpractice. Thus, in a recent case asserting a
§ 1983 claim for deliberate indifference based on the
failure of prison physicians to render needed medical
care to a prisoner, we applied the statute-of-limitations
analysis applicable to medical-injury claims under the
Federal Tort Claims Act. See Richards, 696 F.3d at 637. In
Richards, as here, the plaintiff was an Indiana prisoner.
Starting in January 2008, he complained to prison
doctors of abdominal pain and blood in his stool, but
they “assured him that he was fine.” Id. at 636. In
October 2008 they finally referred him to a specialist,
who promptly diagnosed ulcerative colitis. By that time,
however, the only solution was to remove his lower
digestive tract. In December 2010 the prisoner sued the
prison physicians, and they moved to dismiss based
on the two-year statute of limitations. The district court
granted the motion, but we reversed. Id. at 637-38.
We began by noting that in claims brought under
§ 1983, “[f]ederal law defines when a claim accrues, . . . and
the federal rule for medical errors is that a claim accrues
when a person knows his injury and its cause.” Id. at 637.
For this principle we cited United States v. Kubrick,
444 U.S. 111 (1979), a case involving a medical-malpractice
claim brought under the Federal Tort Claims Act. Id.; see
also Goodhand v. United States, 40 F.3d 209, 212-14 (7th

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No. 12-2467 7
Cir. 1994) (explaining accrual rules for medical-injury
claims under the Federal Tort Claims Act). Applying the
rule from Kubrick, we held that the two-year limitations
period commenced October 2008 when Richards was
diagnosed with ulcerative colitis. At that point he
knew “that he had ulcerative colitis that defendants
had failed to detect, causing him to lose his lower gastro-
intestinal tract and anus.” Richards, 696 F.3d at 637. Ac-
cordingly, Richards illustrates that for a § 1983 claim
based on medical injury arising from deliberate indif-
ference, the relevant injury for statute-of-limitations
purposes is not the intangible harm to the prisoner’s
constitutional rights but the physical injury caused by
the defendants’ indifference to the prisoner’s medical
needs.
The dispute in Richards, however, centered on tolling
principles and pleading standards, not accrual rules; the
date of accrual was uncontested. See id. at 637-38. Ac-
cordingly, our discussion of when a deliberate-indifference
claim accrues cannot be characterized as a holding. We
adopt it as holding now. A § 1983 claim to redress a
medical injury arising from deliberate indifference to a
prisoner’s serious medical needs accrues when the
plaintiff knows of his physical injury and its cause. The
statute of limitations starts to run when the plaintiff
discovers his injury and its cause even if the full extent
or severity of the injury is not yet known. See Goodhand,

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8 No. 12-2467
We explained in Goodhand that “[t]his is a general principle of 1
limitations law, not an idiosyncratic feature of the statute of
limitations in the Federal Tort Claims Act.” Goodhand v. United
States, 40 F.3d 209, 212 (7th Cir. 1994). The principle is subject
to several important qualifications, notably for cases in-
volving an injury that “seems trivial, and only much later is
it discovered to be serious enough to warrant the expense of
a precomplaint investigation,” and also for cases involving
“lulling efforts by the defendants.” Id. at 212-13. These qualifiers
may or may not apply here, but because we resolve this case
under the general discovery rule, we need not address them.
Although we do not have the merits of Devbrow’s claim 2
before us, we note that testing protocols for prostate cancer are
the subject of debate within the medical profession. See, e.g.,
VIRGINIA A. MOYER, ON BEHALF OF THE U.S. PREVENTIVE
SERVICES TASK FORCE, Screening for Prostate Cancer: U.S. Preven-
tive Services Task Force Recommendation Statement, 157 ANNALS
OF INTERNAL MED. 120 (July 17, 2012); American Urological
(continued...)
40 F.3d at 212. In certain circumstances the limitations1
period may commence later than the date of discovery
(more on that in a moment), but it does not begin any
earlier than the date on which the plaintiff knows of
his physical injury and its cause.
Applying that general rule here, the accrual date is
no different than in Richards. Devbrow alleges that the
defendants were deliberately indifferent to his medical
needs by unnecessarily delaying a biopsy and thus pre-
venting the diagnosis of his prostate cancer until it had
already spread to the bone. Like Richards, Devbrow2

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No. 12-2467 9
(...continued) 2
Association, Prostate-Specific Antigen Best Practices Statement:
2009 Update, http://www.auanet.org/content/media/psa09.pdf.
learned of his injury and its cause when the disease
was diagnosed. He received the cancer diagnosis on
October 21, 2005, and he learned of the metastasis
on December 16, 2005. The two-year limitations period
thus started no earlier than October 21, 2005, and per-
haps as late as December 16, 2005. Either way, the
suit—filed on October 19, 2007—is timely.
The defendants argue that the limitations period began
earlier, on April 27, 2005, as the district court held. As of
that date, they contend, the deliberate indifference
ceased and Devbrow could have sued for nominal or
presumed damages even without a physical injury. It is
true that a prisoner may obtain nominal damages for an
Eighth Amendment deliberate-indifference violation in
the absence of a compensable physical injury; actual
damages are not an element of the claim. See Cotts v.
Osafo, 692 F.3d 564, 569 (7th Cir. 2012) (“Damages are
not an element of liability in a deliberate indifference
claim.”). And a prisoner may also bring an Eighth Amend-
ment claim when the deliberate indifference of prison
officials creates a likelihood of future harm even if no
actual harm is presently manifested. See Helling v.
McKinney, 509 U.S. 25, 31-35 (1993).
But accrual rules are applied to the substance of the
claim before the court, and this deliberate-indifference
claim seeks redress for a concrete physical injury, not

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10 No. 12-2467
probabilistic future harm or an abstract injury for which
nominal damages are available as a remedy. See Sellars
v. Perry, 80 F.3d 243, 245 (7th Cir. 1996) (“A Section 1983
claim accrues when the plaintiff knows or has reason
to know of the injury that is the basis of his action.”).
Here, Devbrow alleges that the defendants’ deliberate
indifference delayed the diagnosis of his cancer until
after it had metastasized. Devbrow did not know of that
injury any sooner than October 21, 2005, when he
received the cancer diagnosis.
The defendants also rely on Heard v. Sheahan,
253 F.3d 316, 320 (7th Cir. 2001), but that case does not
affect the result here. Our decision in Heard involved
an application of the “continuing violation” doctrine.
The plaintiff, an inmate in the Cook County jail, com-
plained of pain for months, suspecting a hernia, but jail
officials did not offer him any treatment. He was eventu-
ally examined by the jail physician, who diagnosed a
ruptured hernia and recommended surgery, but jail
officials refused to act on the recommendation. Id. at
317. After he was released from jail, he sued the jail
officials for deliberate indifference to his medical needs
in violation of the Eighth Amendment. The district
court dismissed the suit as untimely, concluding that
the statute of limitations started to run the moment the
plaintiff knew he had a medical condition that needed
treatment; counting from that date, the two-year limita-
tions period expired long before he filed suit. Id. at 318.
We reversed, construing the claim as a continuing
constitutional violation that persisted for the duration of

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No. 12-2467 11
the inmate’s confinement in the jail. The jail officials
were aware of his need for treatment and refused to do
anything about it, and “[t]his refusal continued for as
long as the defendants had the power to do something
about his condition, which is to say until he left the jail.”
Id. “Every day that they prolonged his agony by not
treating his painful condition marked a fresh infliction
of punishment that caused the statute of limitations to
start running anew.” Id. The inmate sued the jail officials
within two years after he was released, so we held that
his suit was timely. Id. at 318-19.
Heard thus holds that when the violation of the
plaintiff’s constitutional rights is a continuing one, the
statute of limitations does not start to run any earlier
than the last day of the ongoing injury. Id. at 319 (“ ‘[T]he
cause of action accrues at . . . the date of the last in-
jury.’ ” (emphasis added) (alteration in original) (quoting
Matson v. Burlington N. Santa Fe R.R., 240 F.3d 1233, 1237
(10th Cir. 2001))). The continuing nature of the violation
in Heard meant that the limitations period did not com-
mence when the inmate first discovered his medical
problem, but later, when his constitutional rights were
last violated—that is, when he left the jail. In other
words, the continuing-violation doctrine operates to
delay the start of the limitations period. Id. A contrary
rule, we explained in Heard, would encourage the pro-
liferation of protective lawsuits. Id. at 320 (“We have
enough prisoners’ suits without having to create
incentives to bring multiple suits arising out of the same
course of events.”). Accordingly, Heard does not
support the defendants’ argument that Devbrow’s limita-

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12 No. 12-2467
Because Heard does not apply here, we do not address the 3
extent to which our decision in that case has been affected by
the Supreme Court’s reasoning in Ledbetter v. Goodyear Tire &
Rubber Co., 550 U.S. 618 (2007), and National Railroad Passenger
Corp. v. Morgan, 536 U.S. 101 (2002).
2-1-13
tions clock started ticking before he knew he had prostate
cancer.3
The claim asserted here involves an actual physical
injury, not an abstract or intangible one. Devbrow
contends that the defendants’ deliberate indifference
delayed the diagnosis of his cancer until after it
metastasized, foreclosing successful medical interven-
tion. He learned of that injury no earlier than October 21,
2005, when he received his cancer diagnosis. He filed
this suit on October 19, 2007, almost two years later and
just before the statute of limitations expired.
REVERSED.

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