     Case: 13-30373       Document: 00512397323         Page: 1     Date Filed: 10/04/2013




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                     No. 13-30373
                                                                            FILED
                                   Summary Calendar
                                                                         October 4, 2013

                                                                          Lyle W. Cayce
KENT RADER,                                                                    Clerk

               Plaintiff - Appellee

v.

MISTY COWART; PAT BOOK, Individually and in his official capacity as
Warden of Catahoula Corrections Center; LIEUTENANT BOOK; LASALLE
MANAGEMENT COMPANY, L.L.C.; JAMES GLEN KELLY, individually
and in his official capacity as Sheriff of Catahoula Parish,

               Defendants - Appellants



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:09-cv-01872



Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       On appeal is Kent Rader’s suit alleging that he did not receive proper
medical care from October 2007 through December 2008 while incarcerated at


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 13-30373    Document: 00512397323     Page: 2   Date Filed: 10/04/2013




Catahoula Correctional Center (“CCC”) in Harrisonburg, Louisiana. Rader sued
Warden Pat Book, Misty Cowart (a licensed practical nurse (“LPN”) employed
at the CCC), Sheriff James Glen Kelly, Lieutenant Book, and the CCC’s private
operator LaSalle Management Company, L.L.C. (collectively “defendants”) for
violations of various constitutional rights under 42 U.S.C. § 1983 and Louisiana
law. On February 1, 2013, the district court adopted a magistrate judge’s report
and recommendation and denied defendants’ motion for summary judgment. We
affirm.


                      I. FACTS AND PROCEEDINGS
      Rader was incarcerated at CCC from February 6, 2007 to May 28, 2009.
He alleges that during his incarceration defendants denied him medical care for
ocular histoplasmosis. According to defendants’ motion for summary judgment,
Rader wrote a medical request in October 2007 seeking care and treatment for
the loss of sight in his left eye. He also reported his eyesight loss to, among
others, Cowart. After continued complaints about his eyesight, Rader was
brought to Cowart in early 2008. After two visits to Huey P. Long Hospital-
England Airpark in January 2008, Rader was referred to LSU Medical Center-
Shreveport for additional treatment.
      It was not until October 22, 2008, however, that Rader had his first visit
to the LSU Medical Center in Shreveport. According to defendants, immediately
after this visit “he knew that he had Histoplasmosis and . . . that, had he
received treatment sooner, the outcome could have been different.”
      Rader filed his complaint on October 30, 2009, contending that Cowart and
LaSalle Management were deliberately indifferent to his serious medical needs,
leading to permanently lost vision. Defendants filed a motion to dismiss on
February 16, 2010, which was referred to a magistrate judge. On July 9, 2010,

                                       2
    Case: 13-30373     Document: 00512397323     Page: 3   Date Filed: 10/04/2013




a Report and Recommendation recommended that the motion be denied. The
district court denied the motion to dismiss on July 23, 2010. After the district
court’s denial of the motion to dismiss and the completion of discovery,
defendants moved for summary judgment. Defendants’ motion only argued
prescription, an argument the district judge addressed in the previous motion
to dismiss.
      On December 11, 2012, in his report and recommendation, the magistrate
judge stated that in the district court’s
      ruling on defendants’ motion to dismiss, the district judge held that
      Rader’s cause of action based on injury to his vision accrued no later than
      December 31, 2008, and therefore his action, filed on October 30, 2009,
      was filed timely. The defendants are re-urging in their motion for
      summary judgment an issue the district court has already ruled on.

In its report, the magistrate recommended that defendants’ motion for summary
judgment on the issue of prescription should be denied. The magistrate made
this recommendation without addressing the merits of defendants’ prescription
argument, their proffered evidence resulting from discovery, or plaintiff’s
evidence and argument in opposition. Instead, the magistrate applied “collateral
estoppel, or issue preclusion.” According to the report:
      In the case at bar, the issue of prescription was raised in defendants’
      motion to dismiss, litigated, and ruled on by the district court in a final,
      appealable judgment. Since this issue has already been considered and
      ruled on in this court, this motion should be denied as repetitive and,
      pursuant to the principle of issue preclusion, should not be reconsidered
      in this court.

      In February 2013, the district court denied defendants’ motion “[f]or the
reasons contained in the Report and Recommendation of the Magistrate Judge
previously filed herein, and after independent (de novo) review of the record
including the objections filed herein.” On March 1, 2013, defendants filed a

                                            3
    Case: 13-30373     Document: 00512397323     Page: 4   Date Filed: 10/04/2013




Motion to Certify Judgment for Appeal, seeking permission from the district
court for appellate review. The district court granted the motion, and this court
granted defendants permission to seek appellate review of the denial of the
motion for summary judgment. See 28 U.S.C. § 1292.


                        II. STANDARD OF REVIEW
      We review the grant of summary judgment de novo, applying the same
standards as the district court. Albemarle Corp. v. United Steel Workers ex rel.
AOWU Local 103, 703 F.3d 821, 824 (5th Cir. 2013). “Even if we do not agree
with the reasons given by the district to support summary judgment, we may
affirm the district court’s ruling on any grounds supported by the record.”
Lifecare Hosps., Inc. v. Health Plus of Louisiana, Inc., 418 F.3d 436 (5th Cir.
2005). Summary judgment is appropriate when the evidence indicates there is
no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. Anadarko Petroleum Corp. v. Williams Alaska Petroleum,
Inc., No. 12-20716, 2013 WL 4001507, at *2 (5th Cir. Aug. 6, 2013); FED. R. CIV.
P. 56(a). “We review de novo [a] district court’s ruling on prescription.” Brown
v. Slenker, 220 F.3d 411, 419 (5th Cir. 2000).


                              III. DISCUSSION
      Defendants appeal the district court’s application of issue preclusion and
resulting denial of their prescription-based motion for summary judgment.
A. Issue Preclusion
      Defendants argue that the district court’s adoption of the legal reasoning
contained in the magistrate’s report and recommendation regarding issue
preclusion was error. We agree. Although the magistrate’s report correctly
described issue preclusion, it incorrectly applied the doctrine by finding that it

                                        4
    Case: 13-30373     Document: 00512397323    Page: 5   Date Filed: 10/04/2013




barred defendants’ motion for summary judgment.
      “[W]hen an issue of ultimate fact has once been determined by a valid and
final judgment, that issue cannot again be litigated between the same parties in
any future lawsuit.”    Ashe v. Swenson, 397 U.S. 436, 443 (1970).         Issue
preclusion only applies, however, when “the facts and the legal standard used
to assess them are the same in both proceedings.” Pace v. Bogalusa City Sch.
Bd., 403 F.3d 272, 290 (5th Cir. 2005) (internal marks omitted); In re Southmark
Corp., 163 F.3d 925, 932 (5th Cir. 1999).
      The standard applied to a motion to dismiss under Rule 12(b)(6) differs
significantly from that applied to a motion for summary judgment. As this court
previously described the distinction:
      We review both a motion to dismiss and a motion for summary judgment
      under a de novo standard of review. In the former, the central issue is
      whether, in the light most favorable to the plaintiff, the complaint states
      a valid claim for relief. In the latter, we go beyond the pleadings to
      determine whether there is no genuine issue as to any material fact and
      that the movant is entitled to judgment as a matter of law.

St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000)
(citations omitted). Whereas a motion to dismiss challenges a complaint’s legal
sufficiency, a post-discovery motion for summary judgment evaluates whether
a genuine issue of material fact remains after considering both sides’ proffered
evidence.
      The district court’s judgment on the motion to dismiss did not find facts;
it found only that Rader’s allegations were sufficient to defeat the motion to
dismiss. The lower court thus erred in applying issue preclusion to defendants’
motion for summary judgment on prescription based on its prior ruling in the
motion to dismiss.
B. Prescription

                                        5
    Case: 13-30373     Document: 00512397323      Page: 6   Date Filed: 10/04/2013




      Because 42 U.S.C. § 1983 has no statute of limitations, the prescriptive
period is based on state law. Louisiana has a one year prescriptive period for all
personal injury claims, including civil rights claims. Cruz v. Lousiana ex rel.
Dep’t of Pub. Safety and Corr., 528 F.3d 375, 378-79 (5th Cir. 2008). Although
federal courts apply state prescriptive periods, they look to federal law to
determine when a civil rights action accrues. Harris v. Hegmann, 198 F.3d 153,
156-57 (5th Cir. 1999); Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir. 1992).
“A cause of action accrues, under federal law, when the plaintiff knows or has
reason to know of the injury which is the basis of the action.” Brown v.
Nationsbank Corp., 188 F.3d 579, 589-90 (5th Cir. 1999) (internal marks
omitted). “A plaintiff’s awareness encompasses two elements: (1) The existence
of the injury; and (2) causation, that is, the connection between the injury and
the defendant’s actions.” Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th
Cir. 1995).
      Without applying issue preclusion, we find that the record supports the
district court’s denial of the motion for summary judgment. In relevant part, the
district court’s February 2010 order denying defendants motion to dismiss held:
      Plaintiff’s complaint clearly asserts that he was informed, during a visit
      to Doctors Taba and Mindeola in November or December of 2008, for the
      first time that his vision was impaired by a condition known as ocular
      histoplasmosis which would have been curable if treated timely. Plaintiff
      asserts that he was informed during this visit that, as a result of the delay
      in treatment, his vision loss was permanent and irreversible. While
      plaintiff requested medical attention for his vision problems as early as
      2007, the record before the court supports a finding that plaintiff was
      apprised of his diagnosis and of the effect of delayed treatment much later.
      Defendants offer no evidence that plaintiff was aware of his diagnosis at
      any point prior to November or December of 2008. Were plaintiff able to
      diagnose and treat his own medical condition, any alleged deprivation by
      defendants would be moot. We do not impose that burden on plaintiff in
      these proceedings. . . . Accordingly, we find that plaintiff’s cause of action

                                            6
    Case: 13-30373     Document: 00512397323      Page: 7   Date Filed: 10/04/2013




      based on injury to his vision accrued no later than December 31, 2008.
      Plaintiff’s suit, filed on October 30, 2009, is timely.

We accept the district court’s framework, and evaluate whether defendants
introduced enough evidence that no genuine issue of material fact remains as to
whether Rader was aware of his alleged injury prior to October 30, 2008.
      Defendants direct this court’s attention to Rader’s deposition, hospital
records from January 2008 stating that Rader had “likely POHS [presumed
ocular histoplasmosis syndrome],” the deposition of Rader’s current treating
physician and eye specialist (Dr. John T. Couvillion), and a sick call request form
Rader submitted to CCC on October 20,2008.
      Rader contests defendants characterization of his deposition testimony and
the medical records of his October 22, 2008 diagnosis of ocular histoplasmosis.
According to him, his testimony that “they told me I do have Histo. They were
going to have to start your injections” at most acknowledged that on October 22,
2008 he was given a “possible” or “tentative” diagnosis of “presumed” ocular
histoplasmosis. Further, “[a] final diagnosis of Ocular Histoplasmosis Syndrome
was not (and truly could not be) reached until after Mr. Rader’s fluourescein
angiography on October 30, 2008.” Rader also puts forward the testimony of
Corporal Eric Stott, Misty Cowart, and Dr. Couvillion in support of his
contention that his awareness of his injury occurred on October 30, 2008.
      Based on the evidence presented in parties’ motion for summary judgment,
we agree with Rader that a reasonable juror could find that he “did not know
until the date his POHS diagnosis was finally confirmed (on or after October 30,
2008) that the vision problems he was experiencing were irreversible.”
Moreoever, “he certainly could not have known that these defendants’ . . . failure
to transport him for medical care would lead to the permanent, untreatable
corneal scarring he will suffer for the remainder of his life.” Although Rader

                                        7
     Case: 13-30373        Document: 00512397323           Page: 8     Date Filed: 10/04/2013




experienced symptoms more than a year prior to filing his lawsuit, the
prescriptive period runs at the point when Rader was aware that his loss of
vision was connected to defendants’ alleged mistreatment. A genuine issue of
material fact persists as to when this occurred, rendering summary judgment
inappropriate.1


                                   IV. CONCLUSION
       The judgment of the district court is AFFIRMED.




       1
        Defendants argue that several unpublished district court opinions–Jackson v. E.A.
Conway Med. Ctr., No. 07-1966, 2009 WL 159732 (W.D. La. Jan. 22, 2009); Jackson v. E.A.
Conway Med. Ctr., No. 07-1966, 2009 WL 2512846 (W.D. La. Aug. 17, 2009); and Harrell v.
Edwards, No. 05-4002, 2007 WL 734387 (E.D. La. Mar. 6, 2007)–represent a “proper
application of the law on inmate medical claims.” Even assuming they do represent a proper
application of prescription in those cases, we find their facts distinct from Rader’s. In Jackson,
the court was satisfied that a plaintiff’s heart attack, together with prescriptions and orders
from his doctor, “put him on notice that he was suffering an injury” when the warden
intentionally denied or delayed his access to medical care and interfered with his prescribed
treatment. Jackson, 2009 WL 159732, at *2. In Harrell, the court found prescription to run
from the moment he requested and was denied medical attention after falling in the shower
and “sustain[ing] pain in his right shoulder, right hand, and right foot.” Harrell, 2007 WL
734387. In contrast, Rader’s condition remained undiagnosed well after he began experiencing
symptoms. While we agree with defendants that a final medical diagnosis is not required in
all cases for prescription to run, Rader could not have known that defendants’ alleged delay
or denial of treatment would lead to permanent loss of eyesight without first learning that he
suffered from ocular histoplasmosis.

                                                8
