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4th Cir.: Continuing “indifference” extends limitations period

Rebecca M. Lightle//March 12, 2018

4th Cir.: Continuing “indifference” extends limitations period

Rebecca M. Lightle//March 12, 2018

When inmates sue under § 1983 for prison officials’ disregard of a serious and ongoing medical need, the statute of limitations does not begin to run until the date, if any, on which adequate treatment is provided.


Appellant Eric J. DePaola is incarcerated at Red Onion State Prison. Since childhood, he has received treatment for several mental illnesses. A clinical psychologist who submitted a court-ordered evaluation reported that DePaola suffered from “a major mental illness that involves depression and impulsivity, as well as irrational thinking and poor judgment,” as well as incipient bipolar disorder. The report recommended “ongoing mental health treatment.”

According to DePaola’s complaint, Red Onion officials have allegedly kept him continuously in solitary confinement since he arrived in 2007. He continues to experience mental health problems, including extreme agitation, hyperactivity, depression, hopelessness, sleeplessness, and bizarre thoughts. He has attempted suicide twice since 2010.

In July 2015, DePaola filed a pro se complaint against officials with the Virginia Department of Corrections and the Red Onion facility, asserting under 42 U.S.C. § 1983 that they “have (and continue to) violate” his rights by acting with deliberate indifference to his mental health conditions. The district court held that DePaola’s claims accruing before July 2013 were barred by Virginia’s two-year statute of limitations for personal injury claims and that he had failed to sufficiently allege that any defendant was deliberately indifferent to any serious medical need. This appeal followed.

Continuing violation

Following other circuits, this court concludes that a prisoner may allege a continuing violation under § 1983 by identifying a series of acts or omissions that demonstrate deliberate indifference to a serious, ongoing medical need. The statute of limitations does not begin to run on such a claim for a continuing violation of a prisoner’s Eighth Amendment rights until the date, if any, on which adequate treatment was provided. A plaintiff’s claim of continuing violation may extend back to the time at which the prison officials first learned of the serious medical need and unreasonably failed to act.

Here, DePaola has alleged a continuing violation of deliberate indifference to his serious mental illnesses. According to his complaint, he notified the Department of his mental illnesses during the prison intake process and repeatedly sought help from officials and medical staff at Red Onion. Despite this notice, the defendants have violated and continue to violate his rights by failing to provide any treatment or access to a psychiatrist or psychologist.

Moreover, DePaola has alleged that the defendants’ acts of deliberate indifference continued within the two years prior to the filing of his complaint. He alleges that he continues to experience extreme agitation, complete exhaustion, depression, hopelessness, and trance-like states, among other things. He has sought help repeatedly from different defendants at Red Onion up to the date of his complaint, and they allegedly continued to deny him treatment. Accordingly, DePaola has sufficiently alleged that the defendants have acted with deliberate indifference within the relevant statutory period.

Sufficient allegations

DePaola has sufficiently alleged serious needs about which at least some defendants knew and failed to provide necessary treatment. He alleges that these defendants had notice of his severe depression, hallucinations, acute anxiety, and feelings of hopelessness and helplessness that required medical attention.

In particular, certain defendants named in his complaint responded to his first suicide attempt, an event that plainly put officials on notice that DePaola required attention for ongoing serious mental health conditions that posed a substantial risk to him. Construing DePaola’s complaint liberally, the court holds that he has sufficiently alleged the defendants were on notice since at least 2010, yet have refused to provide him any mental health treatment since then for his ongoing condition.

Thus, the district court erred in dismissing DePaola’s mental health claims against those defendants for deliberate indifference. However, as to the defendants to whom DePaola’s allegations do not attribute actual knowledge of his mental health conditions, the claims are insufficient as a matter of law.

Affirmed in part, reversed in part, and remanded.

DePaola v. Clarke, Case No. 16-7360, Mar. 9, 2018. 4th Cir. (Keenan), from WDVA at Roanoke (Jones). Charles Christopher Moore for Appellant; Trevor Stephen Cox, John Thomas Jessee, and Carlene Booth Johnson for Appellees. VLW No. 018-2-046, 15 pp.

VLW 018-2-046

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