Joe J. RICHARD, Plaintiff-Appellant, v. Dr. Edward RAY, Jr.; Samaritan Hospital, a/k/a Columbia Hospital Lexington, Defendants-Appellees, 290 F.3d 810

OPINION PER CURIAM. Joe J. Richard, a federal prisoner proceeding pro se, appeals a district court judgment dismissing his diversity medical malpractice action. See 28 U.S.C. § 1332. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. RApp. P. 34(a). Seeking monetary relief, Richard filed a complaint on May 23, 2000, against Edward Ray, Jr., M.D. and Samaritan Hospital.

Richard alleged that during his incarceration at the Federal Correctional Institution located in Memphis, Tennessee (“FCI-Memphis”), he was diagnosed with prostate cancer. As a result of the diagnosis, Richard was transferred from FCI-Memphis to the Federal Medical Center located in Lexington, Kentucky, for prostate surgery. On March 17, 1998, Richard underwent a radical perineal prosta-tectomy, which was performed by Ray at the Samaritan Hospital. During the surgery, Richard alleged that he suffered an injury to his rectum, which was repaired by Ray.

In addition, Richard alleged that during the surgery Ray inserted a catheter into his bladder to allow for drainage. According to Richard, the catheter was removed after the surgery and another catheter was inserted. The second catheter was removed by another doctor on April 8, 1998, pursuant to Ray’s instructions. Following the surgery, Richard experienced pain in his back and difficulty urinating.

Richard alleged that pus formed around the catheter, his urine contained blood and clots, and he suffered clammy wet skin, chills, “itching rash and blisters on his back.” On April 22, 1999, and May 8, 1999, medical staff at FCI-Memphis inserted catheters into Richard’s bladder in order to drain the bladder and provide pain relief for Richard. A subsequent medical examination revealed the presence Of a portion of a catheter, approximately three inches in length, in Richard’s bladder. On May 20,1999, Dr. William Shapp-ley removed the catheter segment from Richard’s bladder at a hospital in Memphis.

Richard alleged that both his rectal injury and bladder injury, resulting from the catheter segment located in his bladder, were caused by the negligence of Ray and Samaritan Hospital during his prostate surgery in 1998. The defendants filed motions for

summary judgment, to which Richard responded. The district court granted the defendants’ motions and dismissed Richard’s complaint as time-barred. Richard has filed a timely appeal. He has also filed a request for judicial notice and a motion to grant the district court leave to correct the record, to which the defendants have responded. We review the district court’s grant of

summary judgment de novo. Kincaid v. Gibson, 236 F.3d 342, 346 (6th Cir.2001).

Summary judgment is appropriate when the evidence presented shows “ ‘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.’ ” Id. (quoting Fed.R.Civ.P. 56(c)). When federal court jurisdiction is based upon diversity of citizenship, as here, this court must apply the law of the forum state. See Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Stalbosky v. Belew, 205 F.3d 890, 893 (6th Cir.2000).

Because Richard alleged a state tort claim of medical malpractice, the applicable state statute of limitations should be applied. See Hodge v. Serv. Mach. Co., 438 F.2d 347, 348 (6th Cir.1971). In Kentucky, a medical malpractice action must be brought within one year of the date on which the cause of action accrues. Ky.Rev.Stat. Ann. § 413.140(l)(e) (Michie 2001). A medical malpractice action accrues “at the time the injury is first discovered or in the exercise of reasonable care should have been discovered.” Ky.Rev.Stat. Ann. § 413.140(2) (Michie 2001).

It is undisputed that Richard became aware of his bladder injury when Dr. Shappley removed the portion of catheter from his bladder on May 20, 1999. Thus, the statute of limitations began to run on May 20, 1999, and expired one year later. However, since May 20, 2000, fell on a Saturday, Richard had until May 22, 2000, to timely file the 'instant complaint. See Fed.R.Civ.P. 6(a). Richard’s complaint was stamped “filed” by the court clerk on May 23, 2000. In Houston v.

Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the United States Supreme Court held that a pro se petitioner’s notice of appeal on ha-beas corpus review is deemed filed on the date that it is turned over to prison officials for transmittal to the court. Based upon an

interpretation of the language of Federal Rules of Appellate Procedure 4(a)(1) and 3(a), which provide that an appeal is commenced with the filing of a notice of appeal with the district clerk, the Supreme Court held that the language of the rules was sufficient to allow accommodation for the unique circumstances of an incarcerated pro se petitioner. Id. at 270-272, 108 S.Ct. 2379.

In reaching this holding, the Court identified several concerns particular to the incarcerated petitioner without counsel: 1) the petitioner’s inability to control the notice of appeal after it has been delivered to prison officials, 2) the petitioner’s lack of legal counsel to institute and monitor the process, and 3) any incentive on the part of prison authorities to delay a pro se prisoner’s filing beyond an applicable time limit. Id. All of the justifications for applying the mailbox rule in Houston v. Lack are present in the instant case. First, as noted by the Fourth Circuit in Lewis v.

Richmond City Police Dep't, 947 F.2d 733 (4th Cir.1991), the language of Fed. R.Civ.P. 5(e), governing the filing of civil complaints in federal court, is comparable to the language of Fed. R.App. P. 4(a)(1) interpreted in Houston v. Lack. See Lewis, 947 F.2d at 736; see also Garvey v. Vaughn, 993 F.2d 776, 782 (11th Cir.1993) (holding that the language of both rules is “so similar that an identical

interpretation is warranted”); Cooper v. Brookshire, 70 F.3d 377, 380 (5th Cir.1995) (quoting the similar language analysis in Lewis and Garvey with approval). Both rules require that in order to initiate an action, the appropriate legal documents must be “filed with the clerk of the district court”. See Fed.R.Civ.P. 5(e); Fed R.App. P. 4(a)(1); Houston v. Lack, 487 U.S. at 273, 108 S.Ct. 2379. Second, all of the concerns highlighted by the Supreme Court in Houston v.

Lack are present when a pro se prisoner files a civil complaint. “Fundamentally, the rule in Houston is a rule of equal treatment; it seeks to ensure that imprisoned litigants are not disadvantaged by delays which other litigants might readily overcome. It sets forth a bright line rule — that filing occurs when the petitioner delivers his pleading to prison authorities for forwarding to the court clerk.” Lewis, 947 F.2d at 735. Finally, many of the circuits extending the filing rules of Houston v.

Lack to civil complaints have taken note that Houston gives no indication, in either text or analytical framework, that it should be limited to the habeas context. See Dory v. Ryan, 999 F.2d 679, 682 (2nd Cir.1993); Cooper, 70 F.3d at 380; Lewis, 947 F.2d at 736. Accordingly, we hold that Houston v. Lack applies to civil complaints filed by pro se petitioners incarcerated at the time of filing. Upon review, we vacate the district court’s judgment dismissing Richard’s complaint as untimely and remand for further proceedings.

Richard presented evidence that he submitted his complaint rio prison officials for mailing prior to the expiration of the one-year statute of limitations. The defendants did not offer any evidence or argument to refute Richard’s statements that his complaint was placed in the prison mail system before May 22, 2000. Therefore, Richard’s complaint should be deemed timely filed as of the date it was submitted to prison authorities for forwarding to the court clerk pursuant to the mailbox rule set forth in Houston.

Accordingly, the request for judicial notice is denied, the motion for leave to correct the record is granted, and the district court’s judgment is vacated and this case is remanded to the district court for further proceedings. Rule 34(j)(2)(C), Rules of the Sixth Circuit.