                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                  UNITED STATES COURT OF APPEALS                         July 8, 2005

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                             Clerk


 DERRICK A. BURKLEY,

           Plaintiff-Appellant,

 v.

 CORRECTIONAL HEALTHCARE
 MANAGEMENT OF OKLAHOMA,
 INC.; CHARLES F. HARVEY, DO;
 CORRECTIONAL HEALTHCARE
 MANAGEMENT INC.,

           Defendants-Appellees.                        No. 04-6079
                                                 (D.C. No. 02-CV-1762-L)
 and                                                 (W.D. Oklahoma)

 OKLAHOMA COUNTY
 COMMISSIONERS, on behalf of the
 Oklahoma County Jail; JOHN
 WHETSEL, in his individual and
 official capacity as Sheriff of
 Oklahoma County; RUSSELL DEAR,
 in his individual and official capacity
 as Administrator of Oklahoma County
 Jail,

           Defendants.



                           ORDER AND JUDGMENT *

       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before SEYMOUR, Circuit Judge, PORFILIO, Senior Circuit Judge and
HARTZ, Circuit Judge.


      Derrick Burkley appeals from an order of the district court granting

defendants’ motions for summary judgment in his 42 U.S.C. § 1983 action, on the

ground that the statute of limitations barred his federal claims. We affirm.

      Mr. Burkley, who is paraplegic and confined to a wheelchair, was detained

prior to trial in the Oklahoma County Detention Center from August 2000 to

March 2001. During this time, he developed a serious decubitis ulcer, commonly

termed a “bedsore,” on his left buttock. He was subsequently physically

restrained, allegedly to further treatment for his bedsore, in restraints of varying

severity. He brings claims under the Fifth and Fourteenth Amendments, alleging

deliberate indifference to his serious medical needs and the unlawful use of

restraints. 1 His suit is against the detention center’s medical providers,

Correctional Healthcare Management and Correctional Healthcare Management of

Oklahoma, Inc., and its employee, Dr. Charles Harvey, the treating physician.

The district court held that all of Mr. Burkley’s federal claims were barred

because they were premised on acts falling outside of the applicable statute of


      1
       He also alleged claims under the Equal Protection Clause, Americans with
Disabilities Act, and a state law claim of medical negligence, all of which he has
abandoned on appeal. See Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263,
1266 (10th Cir. 2004).

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limitations, such acts being “sufficient to put plaintiff on notice that his rights had

been violated.” Aplt. App. at 1101. The court declined to exercise supplemental

jurisdiction over Mr. Burkley’s state law claim of medical negligence.

       We review a grant of summary judgment de novo. Simms v. Okla. ex rel.

Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.

1999). Summary judgment is appropriate “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” F ED . R. C IV . P. 56(c). In

applying this standard, “we view the evidence and draw reasonable inferences

therefrom in the light most favorable to the nonmoving party.” Simms, 165 F.3d

at 1326. In addition, we review statute of limitations issues de novo. Burton v.

R.J. Reynolds Tobacco Co., 397 F.3d 906, 916 (10th Cir. 2005). Section 1983

claims are “best characterized as personal injury actions” and as a result, “the

forum state’s personal injury statute of limitations should be applied.” Blake v.

Dickason, 997 F.2d 749, 750 (10th Cir. 1993). The applicable statute of

limitations in this case is two years, as set forth in O KLA . S TAT . tit. 12, § 95(3).

A determination of when a claim accrues, however, is a matter of federal law.

Newcomb v. Ingle, 827 F.2d 675, 678 (10th Cir. 1987).

       Mr. Burkley filed this lawsuit on December 12, 2002. Under the two-year



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statute of limitations, his suit only covers injuries from December 12, 2000,

onwards. Although he alleges some facts that follow December 12, most of Mr.

Burkley’s allegations fall within an approximately three-month window preceding

December 12. He contends we should consider these pre-December 12 injuries on

the theory that they were continuing in nature and that his claims did not properly

accrue until the last date of his injuries. He also contends he was denied adequate

medical care until February 26, 2001, and he was unlawfully restrained until

December 15, 2000. He thus argues that his claims accrued, and the statutes of

limitations began to run, on February 26, 2001 and December 15, 2000,

respectively.

      The district court held that the date of accrual fell before December 12,

relying on the proposition that “[a] civil rights action accrues when the plaintiff

knows or has reason to know of the injury which is the basis of the action.”

Baker v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir. 1993). In certain

circumstances, however, a plaintiff can experience continuing violations or

wrongs such that a claim accrues for limitations purposes at the culmination of

the continuous injury. See Tiberi v. Cigna Corp., 89 F.3d 1423, 1430-31 (10th

Cir. 1996) (applying New Mexico law and holding claim accrues, and limitations

period runs, from date of last injury or when “the wrong is over and done with”);

see also Heard v. Sheahan, 253 F.3d 316, 318-19 (7th Cir. 2001) (applying



                                         -4-
continuing wrong doctrine in § 1983 deliberate indifference case). The

continuing violation doctrine permits a court to look backwards to the entirety of

a continuing wrong to assess its cumulative effect, so long as an injurious act falls

within the statute of limitations period. See Heard, 253 F.3d at 318; Tiberi, 89

F.3d at 1430-31. There is some dispute over whether the continuing violation

doctrine applies with respect to § 1983 suits. 2 Assuming without deciding that the

doctrine applies, we are not persuaded Mr. Burkley has identified sufficiently

serious injuries within the statute of limitations period such that he can employ

the continuing violation doctrine to sustain his action.

      We first address Mr. Burkley’s claim of deliberate indifference to his

medical needs to determine whether he incurred sufficient injuries within the

statute of limitations period. 3 Mr. Burkley’s general claims are that he was


      2
       It appears that we have not yet applied this doctrine to suits under 42
U.S.C. § 1983. See, e.g, Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994)
(noting that plaintiff cited no cases extending doctrine to § 1983 suits, but
observing that conspiracy claims are analogous and have been held viable under §
1983); cf. Davidson v. Am. Online, Inc., 337 F.3d 1179, 1184-86 (10th Cir. 2003)
(acknowledging doctrine but rejecting its use for discrete acts of discrimination
under the Americans with Disabilities Act, following Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101 (2002) (Title VII case)); Thomas v. Denny’s, Inc., 111
F.3d 1506, 1513-14 (10th Cir. 1997) (questioning applicability of doctrine to §
1981 suits). However, other circuits have recognized the viability of this
approach. See Heard v. Sheahan, 254 F.3d 316, 320 (7th Cir. 2001) (“Numerous
cases assume that a federal doctrine of continuing wrongs is indeed applicable to
suits under 42 U.S.C. § 1983.”) (collecting cases).
      3
       Mr. Burkley’s conditions-of-confinement claims as a pretrial detainee are
analyzed as due process claims while those of a convicted prisoner are analyzed

                                         -5-
denied the use of his specially-padded wheelchair to help prevent bedsores, he

was denied medical care, and the care he did receive was inadequate. Mr.

Burkley’s ulcer was first diagnosed by medical staff at the jail on September 20,

2000. The wound quickly progressed to Stage IV, which is the most serious level

of ulcer. Mr. Burkley was sent to the hospital in mid-October where he

underwent two surgical procedures, and he was returned to the detention center in

early November. During this time he was placed in restraints of decreasing

severity to prevent him from lying on his wound. Mr. Burkley testified that he

got his own padded wheelchair back on or around December 13, aplt. app. at 223,

and the district court found that Mr. Burkley received his padded wheelchair by

December 15 at the latest. Id. at 1097. Although Mr. Burkley points to several

other acts that he argues constitute deliberate indifference post-December 12, he

testified definitively that he had no further complaints about his medical care

after he received his wheelchair. Id. at 223 (“everything was cool after that”). In

addition, Dr. Harvey examined Mr. Burkley on December 12 and noted that his

ulcer had “healed nicely.” Id. at 112. The doctor agreed at that time that Mr.

Burkley could be transferred to his regular cell and be taken out of restraints.


as Eighth Amendment claims. However, the same analysis applies to both types
of claims. Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (“Although the
Due Process Clause governs a pretrial detainee’s claim of unconstitutional
conditions of confinement, the Eighth Amendment standard provides the
benchmark for such claims.”) (citation omitted).


                                         -6-
      Based on Mr. Burkley’s allegations, the only act that could support his

claim of deliberate indifference is the denial of his padded wheelchair for at most

three days. Prisoners with disabilities who are susceptible to decubitis ulcers may

be able to demonstrate deliberate indifference if the prison allows their sores to

develop or to worsen. See, e.g., Green v. McKaskle, 788 F.2d 1116, 1127-28 (5th

Cir. 1986) (“There is no question that allowing bedridden prisoners to develop

bedsores may demonstrate deliberate indifference to the needs of those

prisoners.”) (citing Estelle v. Ruiz, 503 F. Supp. 1265, 1346 (S.D. Tex. 1980)

(“Allowing bedridden or sedentary inmates with mobility impairments to develop

bedsores–which could be minimized or prevented by proper hygiene and

nursing–constitutes deliberate indifference to their serious medical needs.”)). Mr.

Burkley has not established that the three-day deprivation of his wheelchair was

sufficiently serious to constitute deliberate indifference nor that defendants were

subjectively aware of any substantial risk to him by not having a padded

wheelchair for that period of time. Oxendine v. Kaplan, 241 F.3d 1272, 1276

(10th Cir. 2001) (deliberate indifference to serious medical needs under the

Eighth Amendment requires “sufficiently serious” deprivation and “sufficiently

culpable state of mind” by prison official). In fact, the record reveals that by

December 12 officials believed Mr. Burkley’s health was satisfactory and

improving.



                                          -7-
      Mr. Burkley also contends he was subjected to cruel and unusual

punishment through the unlawful use of restraints. He was restrained for over

one month after his return from the hospital, and was released from the restraints

by December 15. Looking to the window of time between December 12 and 15,

we conclude that Mr. Burkley’s claim cannot succeed. During the limitations

time period, the record reflects that Mr. Burkley was restrained by only one arm.

See Aplt. App. at 1097, 1102 n.9; see also id. at 359, 364, 400, 429. The district

court noted it had uncovered no case where such a limited restraint was

determined to be a constitutional violation, and Mr. Burkley brought forward no

evidence that the restraints were ordered “for the very purpose of causing him

harm, rather than in a good faith effort to help him heal.” Id. at 1102. We agree

that not only does this minimal level of restraint for three days fail to meet the

“sufficiently serious” prong of the deliberate indifference test, but Mr. Burkley

has not demonstrated that defendants acted with a sufficiently culpable state of

mind during these three days, or pointed to evidence from which we can infer that

“the risk of harm is obvious.” See Hope v. Pelzer, 536 U.S. 730, 737-38 (2002)

(applying deliberate indifference standard to use of restraints by prison officials);

see also Coppage v. Mann, 906 F. Supp. 1025, 1046 (E.D. Va. 1995) (“federal

courts in considering Eighth Amendment claims [attacking the medical use of

restraints] are limited to considering whether the medical treatment afforded state



                                          -8-
prisoners amounts to punishment”). As a result, we hold that Mr. Burkley has not

proffered sufficient evidence to extend this claim into the limitations period.

      Because Mr. Burkley has not demonstrated he suffered constitutional

injuries within the statute of limitations time period, he is thus not able to make

use of the continuing violation doctrine. As a result, we AFFIRM.

                                                SUBMITTED FOR THE COURT

                                                Stephanie K. Seymour
                                                Circuit Judge




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