                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3645
                                   ___________

Charles Thomas Sell,                 *
                                     *
            Appellant,               *
                                     * Appeal from the United States
       v.                            * District Court for the
                                     * Eastern District of Missouri.
United States of America Department *
of Justice,                          *
                                     *
            Appellee.                *
                                ___________

                             Submitted: September 21, 2009
                                Filed: November 6, 2009
                                 ___________

Before WOLLMAN, HANSEN, and SHEPHERD, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       Charles Thomas Sell sued the United States, alleging that he had been the
victim of medical malpractice that occurred while he was in federal custody awaiting
trial. The district court1 dismissed the case with prejudice as barred by the two-year
statute of limitations for claims under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 2671-2680. Sell appeals, arguing that the district court erred because the statute

      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
of limitations was tolled as a result of the medical malpractice, and, in the alternative,
that his cause of action did not accrue until the tortious treatment ended under the
continuous treatment doctrine. We affirm.

                                           I.

       Sell has suffered from mental illness for more than twenty-five years. While
awaiting trial for health care fraud, Sell was in federal custody from April 1999 to
April 2005. During this time, he refused medication intended to make him competent
to stand trial. On the basis of the record before it, the Supreme Court ruled that the
government could not forcibly medicate Sell solely for the purpose of rendering him
competent to stand trial. Sell v. United States, 539 U.S. 166 (2003). While in federal
custody, Sell repeatedly requested independent review of his medical records, and he
was examined by his own physician in July 1999, September 2000, February 2003,
November 2003, early May 2004, late May 2004, and November 2004.

      In May 2004, Sell was transferred from the United States Medical Center for
Federal Prisoners (Medical Center) to the St. Louis County Justice Center (Justice
Center), an independent contractor of prison services. When Sell was transferred to
the Justice Center, officials at the Medical Center prepared and transmitted a
“Medical Summary of Federal Prisoner / Alien In-Transit Form” (medical summary).
The medical summary noted Sell’s mental and physical illnesses and prescribed three
medications to be continued indefinitely at the Justice Center until Sell was re-
evaluated by a physician. Sell was examined by a physician at the Justice Center in
July 2004, but did not see a psychiatrist until November 2004. Sell was put on a new
treatment plan on November 19, 2004, which included an additional medication.

      On September 7, 2006, Sell filed an administrative tort claim with the Bureau
of Prisons alleging that his illness had worsened because of deficient medical
treatment while in federal custody. The Bureau of Prisons denied Sell’s complaint,

                                           -2-
and he filed this case in federal court. The district court ruled that Sell’s claim was
time-barred by the two-year statute of limitations for FTCA claims. The court
determined that the statute was not tolled by reason of Sell’s mental illness. The court
also rejected Sell’s continuous treatment doctrine argument, finding that his cause of
action accrued before his transfer to the Justice Center.

                                           II.

                                           A.

        Sell argues that the statute of limitations was tolled while he was at the Medical
Center because the government’s medical malpractice made him unable to discover
the nature and cause of his injury. He asserts that his claim accrued in November
2004, at the earliest, when he supposedly became aware of the nature and cause of his
injury after being examined by his psychiatrist, Dr. C. Robert Cloninger. Generally,
a cause of action accrues under the FTCA when a plaintiff is injured. United States
v. Kubrick, 444 U.S. 111, 120 (1979). In medical malpractice cases, however, the
cause of action accrues when the plaintiff discovers the nature and cause of his injury.
Id. at 123-24. Once the cause of action accrues, the plaintiff has two years to file his
claim under the FTCA. 28 U.S.C. § 2401(b). “Although the choice of the appropriate
rule for determining when a claim accrues is a matter of law, a district court’s findings
on the application of that rule are findings of fact and will not be disturbed unless
clearly erroneous.” Brazzell v. United States, 788 F.2d 1352, 1355 (8th Cir. 1986).

       Sell asserts that the district court erred by focusing on his mental illness rather
than on the government’s alleged role in worsening his condition. He cites Clifford
ex rel. Clifford v. United States for the proposition that the statute of limitations in a
FTCA case tolls when the government’s negligence makes a plaintiff unaware of the
nature and cause of his injury. 738 F.2d 977, 980 (8th Cir. 1984). Clifford involved
a patient in a persistent vegetative state because of an overdose arguably caused by the

                                           -3-
government’s negligence. Id. at 978. We held that the statute was tolled until a
guardian was appointed to represent the plaintiff’s interests, under the theory that the
government should not profit from its own wrongdoing. Id. at 980. Our holding dealt
“only with that rare situation where the alleged malpractice itself (and not some
preexisting mental condition unconnected with the government) has prevented the
claimant from ever obtaining [] knowledge” of his injury. Id. Clifford does not stand
for the principle that any negligence by the government tolls the statute. A
government-induced illness tolls the statute only if it prevents discovery of the nature
and cause of the injury. Id. at 979-80. If the illness does not prevent discovery, the
government’s negligence will not do so on its own. Id. In this case, the district court
did not find that Sell’s illness prevented discovery of his injury. Thus, the holding in
Clifford is inapplicable.

        There are also important factual differences between Clifford and Sell’s case.
First, Sell’s condition was not similar to a plaintiff in a persistent coma suddenly
induced by the government’s actions. As a former provider of medical services
himself, Sell repeatedly interacted with his own doctor while litigating his treatment
plan. Second, unlike the plaintiff in Clifford, Sell had a preexisting mental condition
unconnected with the government’s actions that may have affected his ability to know
the nature and cause of his injury. He suffered from a delusional disorder when he
entered the Medical Center in 1999, and he suffered from this same illness when he
left in 2005. Third, Sell had a hand in his medical treatment, and if that treatment
rendered him unable to recognize his cause of action (a claim which we reject), then
he bears part of the blame. Tolling is an equitable remedy that is applied when the
plaintiff is blameless, Wilson ex rel. Wilson v. Gunn, 403 F.3d 524, 526 (8th Cir.
2005), and thus it is not appropriate in this case.2

      2
       Sell also cites Washington v. United States, 769 F.2d 1436 (9th Cir. 1985), and
Simmons v. United States, 805 F.2d 1363 (9th Cir. 1986), but neither is controlling
or persuasive. Washington dealt with a plaintiff in a persistent coma arguably due to
the government’s negligence and is inapposite for the same reasons as Clifford. 769

                                          -4-
       Sell also contends that Brazzell is apposite. In Brazzell we tolled the statute for
a plaintiff suffering from a unique case of myalgia and depression induced by a
government-recommended vaccination. 788 F.2d at 1357. We tolled the statute until
the plaintiff’s doctor determined with a reasonable degree of medical certainty that the
vaccine had caused her illness; it would have been unfair to the plaintiff, given her
lack of knowledge of the cause of her injury, for her claim to accrue earlier. Id. at
1356-57. Unlike the plaintiff in Brazzell, who suffered from a sudden illness with an
undiscovered cause, Sell has suffered from mental illness for more than twenty-five
years, and he was diagnosed with a delusional disorder as early as 1999. His illness
was neither unique nor obscure. While in federal custody awaiting trial, Sell was
repeatedly seen by his own physician. He was aware of his mental illness, cognizant
of the treatment plan he was receiving, and able to articulate his objections to this
treatment. He had the knowledge and wherewithal to bring a claim under the FTCA
before his transfer to the Justice Center.

       For these reasons, we agree with the district court’s determination that the
statute of limitations did not toll.

                                            B.

      In the alternative, Sell argues that, under the continuous treatment doctrine, his
cause of action did not accrue until he received a new treatment plan at the Justice
Center on November 19, 2004. Under this exception, a cause of action accrues when

F.2d at 1437. In Simmons, the Ninth Circuit upheld a district court ruling permitting
a belated tort claim to proceed. Id. at 1366-68. The plaintiff engaged in a sexual
relationship with her social worker, and the victim discovered the emotional injury the
relationship caused when she received counseling after a suicide attempt three years
later. Id. at 1367. In this case, Sell was aware of the potential effects of his treatment,
and he litigated these matters extensively. The district court did not find that Sell was
unaware of the nature and cause of his injury such that he could not bring a timely
claim, and thus Simmons does not apply.

                                           -5-
tortious treatment ends, rather than when awareness of the injury begins. Wehrman
v. United States, 830 F.2d 1480, 1483 (8th Cir. 1987). Determination of when tortious
treatment ends is a factual finding that we review for clear error. McCoy v. United
States, 264 F.3d 792, 795 (8th Cir. 2001).

        The district court found that federal employees did not commit any tortious
acts against Sell while he was housed at the Justice Center, and that the last time a
federal employee directed Sell’s medical care was on April 27, 2004.3 The district
court specifically noted that Sell failed to prove that the government directed his care
at the Justice Center, or committed any negligent acts after Sell’s transfer. These
findings were well supported by the evidence, and not clearly erroneous.

       Sell, however, argues that the district court’s finding was in error because the
government remained in “constructive control” of the staff at the Justice Center at
least through November 19, 2004. Sell argues: (1) the Justice Center was not a
medical facility with a psychiatrist on staff to quickly re-evaluate Sell; (2) the
allegedly unprepared Justice Center relied upon the government’s treatment plan ; (3)
the government knew of the Justice Center’s deficiencies in this regard when it
transferred Sell; (4) and, therefore, the government was in constructive control of the
treatment that occurred at the Justice Center.

       Sell is correct that the government’s duty of care to a prisoner does not
necessarily end when a prisoner is transferred to an independent contractor. Logue
v. United States, 412 U.S. 521, 532-33 (1973). In Logue, a suicidal prisoner was
transferred without “specific arrangements . . . for constant surveillance,” and he later


      3
       The district court’s memorandum and order stated, “Although Sell’s injury
may have continued during his time at the Justice Center, the last act where a federal
employee directed Sell’s medical treatment occurred on April 27, 2008.” D. Ct. Order
of October 3, 2008, at 9. It is clear from the record and the context that the court
meant April 27, 2004.

                                          -6-
hanged himself. Id. The Court remanded the case for consideration of the
government’s liability resulting from the arresting officer’s negligence. Id. But
Logue is inapposite because the government made “specific arrangements” for Sell’s
transfer. The government provided a medical summary to the Justice Center that
listed Sell’s mental illnesses, and the Justice Center knew of Sell’s ailments. Sell was
able to see a psychiatrist while there, and the Justice Center had the ability to continue
treatment of the mental illnesses noted in Sell’s medical summary. Although the
Justice Center did not have psychiatrists on staff, it regularly retained outside
psychiatrists to evaluate prisoners. The Justice Center was free to re-evaluate Sell
after his arrival and change his treatment plan, as it did in November 2004. As the
district court found, the government was not involved in Sell’s treatment after he
arrived at the Justice Center, and any tortious conduct by the government ended in
April 2004. The transfer itself was not negligent, and the evidence did not support a
finding of constructive control. Thus, the district court’s finding that the continuous
treatment exception did not apply is not clearly erroneous.

                                           III.
      The judgment is affirmed.

                        ______________________________




                                           -7-
