(PC) McDaniel v. Lizarraga

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3 UNITED STATES DISTRICT COURT

4 FOR THE EASTERN DISTRICT OF CALIFORNIA

5

6 JOSEPH LEON MCDANIEL, No. 2:19-cv-1136 JAM KJN P

7 Plaintiff,

8 v. ORDER

9 JOE LIZARRAGA, et al.,

10 Defendants.

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12 Plaintiff, a state prisoner proceeding through counsel, filed this civil rights action seeking

13 relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge

14 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Two sets of findings and

15 recommendations are pending. As discussed below, the undersigned adopts the findings and

16 recommendations, denies plaintiff’s pending motion to amend, but grants plaintiff leave to renew

17 his motion to amend with a proposed amended complaint.

18 I. Defendant Lin’s Motion to Dismiss

19 On August 7, 2020, the magistrate judge filed findings and recommendations herein

20 which were served on all parties and which contained notice to all parties that any objections to

21 the findings and recommendations were to be filed within fourteen days.1 (ECF No. 42.)

22 Following extensions of time, plaintiff filed objections to the findings and recommendations on

23 January 12, 2021. (ECF No. 73.)

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1 The magistrate judge found that plaintiff failed to state a plausible claim for deliberate

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indifference to plaintiff’s serious medical need, and recommended that Dr. Lin’s motion to

26 dismiss be granted. Because plaintiff failed to provide any additional facts to support his claim in

his opposition, the magistrate judge declined to grant plaintiff leave to amend, but recommended

27 that Dr. Lin be dismissed without prejudice to plaintiff filing a motion to amend should pertinent

facts be uncovered during discovery.

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1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

2 court conducted a de novo review of this case. Having carefully reviewed the entire file, the court

3 finds the findings and recommendations to be supported by the record and by proper analysis.

4 Dr. Lin’s motion is granted. However, in an abundance of caution, plaintiff is granted leave to

5 amend to plead additional facts as to Dr. Lin.

6 II. Motions by Defendants Toralba, Martinez, Dr. Galang, Dr. Hawkins, Lizzaraga, and Micael

7 On October 15, 2020, the magistrate judge filed findings and recommendations herein

8 which were served on all parties and which contained notice to all parties that any objections to

9 the findings and recommendations were to be filed within fourteen days.2 (ECF No. 54.)

10 Defendant Micael filed objections. (ECF No. 61.) Following extensions of time, plaintiff filed

11 objections to the findings and recommendations on January 15, 2021. (ECF No. 74.)

12 On January 29, 2021, defendant Dr. Galang filed a reply and objections to the exhibits

13 plaintiff appended to his objections. (ECF Nos. 79, 80.) On February 19, 2021, defendants

14 Hawkins, Martinez and Toralba filed a reply. (ECF No. 86.) On March 19, 2021, plaintiff filed

15 an unauthorized sur-reply to moving defendants’ response to plaintiff’s objections.3 (ECF No.

16 92.) In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

17 court conducted a de novo review of this case, and addresses the moving defendants as set forth

18 below.

19 A. Defendant Micael

20 The court reviewed defendant Micael’s objections. Despite such objections, the findings

21 2 The magistrate judge recommended that plaintiff’s claims against defendants Toralba,

Martinez, Dr. Galang, and Dr. Hawkins be dismissed as barred by the statute of limitations; and

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that defendant Lizarraga be dismissed based on plaintiff’s failure to allege facts demonstrating

23 defendant Lizarraga acted with a culpable state of mind and the causal connection between the

acts or omissions of defendant Lizarraga that allegedly constitute a violation of plaintiff’s Eighth

24 Amendment rights (ECF No. 54 at 16-17). The magistrate judge recommended that defendant

Micael’s motion be denied. (ECF No. 54 at 19-20.)

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3 In his introduction, plaintiff claims the magistrate judge “then ordered that defendants respond

to plaintiff’s objections.” (ECF No. 92 at 1.) However, defendants sought an extension of time to

27 file their response to plaintiff’s objections, which the court granted. (ECF Nos. 78, 82.) The

findings and recommendations provided for the filing of objections and a response. (ECF No. 54

28 at 22.) Plaintiff did not seek leave of court to file a sur-reply to the response.

1 and recommendations are supported by the record and by proper analysis. Defendant Micael’s

2 motion to dismiss is denied.

3 B. Defendant Lizarraga

4 Plaintiff’s objections do not address defendant Lizarraga but are solely directed to the

5 statute of limitations issue raised by other moving defendants. The undersigned reviewed the file

6 and finds the findings and recommendations to be supported by the record and by the magistrate

7 judge’s analysis. Defendant Lizarraga’s motion to dismiss is granted.

8 C. Defendants Galang, Hawkins, Martinez and Toralba

9 Initially, the court finds defendant Galang’s objection to plaintiff’s exhibits is well-taken.

10 (ECF No. 80.) For purposes of dismissal under Rule 12(b)(6), the court generally considers only

11 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly

12 subject to judicial notice. Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). The complaint

13 contained no exhibits. (ECF No. 1, passim.) The exhibits plaintiff submitted with his objections

14 (ECF No. 74-1, 2) are not properly subject to judicial notice.4 Therefore, the court solely

15 considers plaintiff’s complaint in addressing the motions to dismiss.

16 1. New Arguments in Objections

17 Despite being represented by counsel, plaintiff offered no substantive arguments in

18 oppositions to the motions to dismiss. Indeed, in the October 15, 2020 findings and

19 recommendations, the magistrate judge stated:

20 Plaintiff’s oppositions offer no substance. Plaintiff merely repeats

that his “injuries are ongoing and easily within the applicable statute

21 of limitations.” (ECF Nos. 19, 31, 38 & 41 at 2.) Plaintiff cites no

legal authorities to support such statement. Plaintiff points to no

22 specific facts as to incidents falling within the two-year limitations

period.

23

(ECF No. 54 at 11.) In addition, plaintiff did not argue he was entitled to equitable tolling, and

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plaintiff’s complaint and oppositions alleged no facts demonstrating plaintiff was pursuing

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another remedy in another legal forum. (Id.) In his oppositions, plaintiff also failed to address or

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4 Although such exhibits purport to be plaintiff’s declarations, they are not signed by plaintiff, or

28 sworn under penalty of perjury. Fed. R. Civ. P. 11(a); 28 U.S.C. § 1746.

1 provide the time frame involved in exhausting administrative remedies for purposes of equitable

2 tolling. (Id.)

3 This court has discretion, but is not required, to consider arguments raised for the first

4 time in a party’s objections. See Brown v. Roe, 279 F.3d 742, 744 (2002) (holding pro se

5 prisoner’s petition remanded based on district court’s failure to exercise discretion as to whether

6 to consider newly-raised equitable tolling argument in objections); United States v. Howell, 231

7 F.3d 615, 621 (9th Cir. 2000). Here, as in Howell, plaintiff is represented by counsel, and

8 therefore plaintiff is not accorded the “benefit of any doubt.” Brown, 279 F.3d at 746 (citation

9 omitted).

10 It appears plaintiff’s counsel waited to submit substantive arguments to the motions until

11 he filed objections to the findings and recommendations. Such delay defeats the purpose for

12 which the magistrate judge system was designed: “to alleviate the workload of district courts.”

13 Howell, 231 F.3d at 622 (citation omitted). In his objections, plaintiff raised, for the first time,

14 his argument that his claim is not barred by the statute of limitations under the “continuous

15 treatment doctrine” (ECF No. 74 at 8), citing various state law cases, some as early as 1995, and

16 primarily relying on Kitzig v. Norquist, 81 Cal. App. 4th 1384, 1387 (2000), demonstrating such

17 authorities were available to counsel at the time his oppositions were filed.

18 The accrual date of a § 1983 cause of action is a question of federal law that is not

19 resolved by reference to state law. Wallace v. Kato, 549 U.S. 384, 388 (2007). Plaintiff’s

20 counsel acknowledges that “state law determines the length of the limitations period, federal law

21 determines when a civil rights claim accrues,” quoting Azer v. Connell, 306 F.3d 930, 936 (9th

22 Cir. 2002) (emphasis added) (internal quotation and citation omitted). (ECF No. 74 at 4.)

23 Despite such acknowledgment, in his objections plaintiff’s counsel relies exclusively on state law,

24 failing to address any governing Ninth Circuit authority, or any other federal authorities for that

25 matter.5 Because plaintiff is represented by counsel, the court is not required to scrutinize

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27 5 Indeed, in his unauthorized sur-reply, plaintiff’s counsel continues to rely on state law, citing

two California cases, “Kitzeg and Rameriz [sic],” without citations. (ECF No. 92 at 2.)

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1 plaintiff’s objections in an effort to determine whether plaintiff’s arguments meet the continuing

2 violation doctrine applied by some federal courts. Rather, that was plaintiff’s counsel’s

3 responsibility. Therefore, the undersigned exercises his discretion to refuse to consider plaintiff’s

4 counsel’s new arguments improperly based on state law and raised for the first time in objections.

5 Plaintiff also objects that the two-year statute of limitations should not apply to him

6 because Brooks v. Mercy Hospital, 1 Cal. App. 5th 1, 7 (Cal. App. 2016), was not decided until

7 2016, and therefore any such application is an ex post facto application because he was convicted

8 in 1991. (ECF No. 74 at 33-34.) Such argument is inapposite. Over 25 years ago, California

9 provided unlimited tolling of the statute of limitations for incarcerated prisoners during

10 imprisonment; however, effective January 1, 1995, the law was amended to limit tolling for

11 prisoners to two years. Cal. Code Civil Proc. § 352.1. Such amendment included the provision

12 “less than for life,” excluding prisoners serving terms of life without the possibility of parole. Id.

13 Thus, § 352.1 is appropriately applied because plaintiff did not dispute that he is sentenced to life

14 without the possibility of parole. In Brooks, the state court simply clarified that inmates serving

15 less than a life sentence remain eligible for the additional two years of tolling for incarceration.

16 Id. (holding the statutory language of Cal. Code Civ. Proc. § 352.1(a) excludes those sentenced to

17 life without the possibility of parole, but is applicable to prisoners serving a sentence of life with

18 the possibility of parole).

19 “Under federal law, a claim accrues when the plaintiff knows or should know of the injury

20 that is the basis of the cause of action.” Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009)

21 (citation omitted). The complaint alleges that on October 21, 2014, Dr. Rudas noted plaintiff had

22 a very poor result from the June 6, 2014 surgery (ECF No. 1 at ¶ 31); on November 21, 2014,

23 plaintiff sought emergency medical care “for severe pain from severely contracted right hand”

24 (ECF No. 1 at ¶ 33); and on December 15, 2014, plaintiff met with defendant Dr. Ibrahim “for a

25 Pre-Op Consult for a corrective/revisionist surgery of the right hand severe contractures,” after

26 which Dr. Ibrahim performed such surgery on January 30, 2015. (ECF No. 1 at ¶¶ 34, 35.)

27 Plaintiff saw Dr. Soltanian on August 18, 2015, for treatment “due to the bad outcome of the first

28 surgery of June 6, 2014” (ECF No. 1 at ¶ 42); began a hunger strike on September 21, 2015, to

1 protest two failed surgeries (ECF No. 1 at ¶ 43).6 Thus, plaintiff was aware of the harm or

2 injuries to his right hand in 2014, yet waited to file suit until 2019, exceeding the two year

3 limitations period.

4 Plaintiff provides no additional facts to demonstrate that the administrative appeal process

5 would grant him sufficient tolling. Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (holding

6 that limitations period tolled while completing the required administrative appeal process).

7 Plaintiff refers to an appeal filed as to Dr. Hawkins’ care on August 8, 2014. (ECF No. 74 at 37.)

8 But even if the administrative exhaustion process took a year, an additional year of tolling would

9 not render the complaint timely because plaintiff did not file this action until June 20, 2019.

10 Plaintiff refers to “equitable tolling,” but offers no facts demonstrating he was pursuing another

11 legal remedy and that the moving defendants had notice. Cervantes v. City of San Diego, 5 F.3d

12 1273, 1275 (9th Cir. 1993) (noting that equitable tolling under California state law “‘reliev[es]

13 plaintiff from the bar of a limitations statute when, possessing several legal remedies he,

14 reasonably and in good faith, pursues one designed to lessen the extent of his injuries or

15 damage.’”)

16 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

17 court conducted a de novo review of this case. Having carefully reviewed the entire file, the court

18 finds the findings and recommendations to be supported by the record and by proper analysis.

19 The motions filed by defendants Hawkins, Martinez, Toralba, and Galang should be granted

20 because plaintiff’s Eighth Amendment claims are barred by the statute of limitations.

21 2. Leave to Amend

22 Leave to amend should be granted freely when justice so requires. See Balisteri v.

23 Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1988) (noting that courts should not deny leave

24 to amend if the court can “conceive of facts” that would render claims viable). Therefore, the

25 court considers whether plaintiff can amend to allege facts demonstrating such claims are not

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27 6 In his objections, plaintiff admits that on August 8, 2014, “Dr. Hawkins MD . . . was not

treating Plaintiff’s hand pain effectively,” and he submitted an inmate appeal that day. (ECF No.

28 74 at 37; see also 39-40.)

1 barred by the statute of limitations.

2 a. Discovery Rule

3 The Ninth Circuit applies the discovery rule in § 1983 cases in which Eighth

4 Amendment violations are alleged. See, e.g., Gregg v. Hawaii, Dep’t of Pub. Safety, 870 F.3d

5 883, 886-87 (9th Cir. 2017) (finding an Eight Amendment deliberate indifference claim accrued

6 when Gregg knew, or had reason to know, through reasonable diligence, that her psychological

7 injuries were caused by improper conduct in therapy); Bibeau v. Pac. Nw. Research Found. Inc.,

8 188 F.3d 1105, 1108 (9th Cir. 1999), opinion amended on denial of reh’g, 208 F.3d 831 (9th Cir.

9 2000) (applying discovery rule in an Eighth Amendment action involving experimental testicular

10 irradiation experiments in prison, brought years after the experiments ended). Federal law

11 determines when the claim accrues. Gregg, 870 F.3d at 887. Under federal law, a civil rights

12 claim accrues “when the plaintiff knows or has reason to know of the injury which is the basis of

13 the action.” Bird v. Dep’t of Human Servs., 935 F.3d 738, 743 (9th Cir. 2019) (quoting Morales

14 v. City of Los Angeles, 214 F.3d 1151, 1153-54 (9th Cir. 2000)). A plaintiff “must be diligent in

15 discovering the critical facts.” Gregg, 870 F.3d at 887. “A cause of action accrues even if ‘the

16 full extent of the injury is not then known.’” Id., citing Wallace v. Kato, 549 U.S. 384, 391

17 (2007) (quoting 1 C. Corman, Limitation of Actions § 7.4.1, pp. 526-27 (1991)).

18 Here, as detailed above, plaintiff’s complaint demonstrates that in 2014, plaintiff had

19 reason to know that he suffered poor surgical results following the June 6, 2014 surgery. Such

20 allegations demonstrate that plaintiff was aware in 2014 that the first surgery failed, yet did not

21 file this action until June 20, 2019. Unlike cases of later-diagnosed cancer or injuries that were

22 not obvious or not discovered until after the limitations period expired, plaintiff’s hand injuries

23 were obvious and documented in 2014. Indeed, by early 2016, his injury was described as

24 chronic: On March 3, 2016, an x-ray report noted well-healed fractures “present with chronic

25 deformity.” (ECF No. 11 at ¶ 44.) Plaintiff’s efforts to mitigate the effects of such post-surgical

26 injuries through physical therapy do not toll the statute of limitations for years until plaintiff is

27 finally informed by a physical therapist on November 20, 2018, that further physical therapy was

28 useless.

1 Plaintiff’s argument that he was unaware of his cause of action or legal claim until

2 November 20, 2018, is also unavailing. A person knows, or should know, of the injury that forms

3 the basis for an action when he knows “both the existence and the cause of his injury,” not upon

4 becoming aware of the applicable law that gives rise to a claim. United States v. Kubrick, 444

5 U.S. 111, 113 (1979); see also Lukovsky v. City & Cnty. of San Francisco, 535 F.3d 1044, 1051

6 (9th Cir. 2008).

7 b. Continuing Violation Doctrine

8 Plaintiff’s belated argument that he is entitled to the continuous treatment doctrine

9 applicable under state law suggests plaintiff might attempt to amend to allege facts supporting

10 application of the continuing violation doctrine. Defendants Dr. Hawkins, Martinez, and Toralba

11 argue that such doctrine is now extremely limited: “Discrete acts of a defendant “are not

12 actionable if time barred, even when they are related to acts alleged in timely filed charges

13 because each discrete act starts a new clock for filing charges alleging that act,” quoting Bird, 935

14 F.3d at 747. (ECF No. 86 at 4.)

15 The continuing violation doctrine is an exception to the discovery rule of accrual which

16 may allow a plaintiff to seek relief for incidents occurring outside the limitations period. See

17 Bird, 935 F.3d at 746, citing Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001). Historically,

18 the Ninth Circuit recognized two applications: (1) the “related acts” continuing violation theory,

19 also known as the “serial acts” theory; and (2) the maintenance of a discriminatory system

20 occurring both before and within the limitations period, also known as the systematic branch of

21 the continuing violation doctrine. Bird, 935 F.3d at 746. However, the Supreme Court limited

22 the related acts continuing violation theory in National R.R. Passenger Corp. v. Morgan, 536 U.S.

23 101, 113 (2002). The Court held that “‘discrete . . . acts are not actionable if time barred, even

24 when they are related to acts alleged in timely filed charges’ because [[e]ach discrete . . . act starts

25 a new clock for filing charges alleging that act.’” Bird, 935 F.3d at 747 (citing Morgan, 536 U.S.

26 at 113). See also Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 829

27 (9th Cir. 2003) (“Although Morgan was a Title VII case . . . we have applied Morgan to bar

28 § 1983 claims predicated on discrete time-barred acts, notwithstanding that those acts are related

1 to timely filed claims.”). In Bird, the Ninth Circuit noted it has also applied Morgan “to abrogate

2 the systematic branch of the continuing violations doctrine as well,”7 concluding that “little

3 remains of the continuing violations doctrine.” Id., 935 F.3d at 747. “Except for a limited

4 exception for hostile work environment claims -- not at issue here -- the serial acts branch is

5 virtually non-existent.”8 Id.

6 Thus, after Bird, plaintiff’s allegations fail to meet the continuing violations exception

7 now limited by the Supreme Court and the Ninth Circuit. Plaintiff does not allege facts

8 suggesting a “class-wide pattern-or-practice claim.” Rather, plaintiff alleges a series of discrete

9 incidents of deliberate indifference: Dr. Galang performed surgery on June 6, 2014, and removed

10 plaintiff’s pins on September 2, 2014 (ECF No. 1 at ¶ 30); on June 6, 2014, RN Martinez was

11 deliberately indifferent (ECF No. 1 at ¶ 22); RN Toralba was deliberately indifferent on July 24,

12 2014 (ECF No. 1 at ¶¶ 28, 147); Dr. Hawkins failed to ensure plaintiff received timely follow-up

13 for the removal of the pins, which were not removed until September 2, 2014; on November 1,

14 2014, nonparty Dr. Petterson took over plaintiff’s primary care from Dr. Hawkins (ECF No. 1 at

15 ¶¶ 26-27; 32; 119-20). None of these alleged violations occurred within the two-year limitations

16 period. Therefore, plaintiff cannot satisfy the more restrictive continuing violation test as to the

17 moving defendants, and is not entitled to such exception. Plaintiff claims that he continued to

18 suffer pain and endured rigorous physical therapy until 2018 as a result of moving defendants’

19 deliberate indifference, but the “mere continuing impact from past violations is not actionable.”

20 Knox, 260 F.3d at 1013 (emphasis and citation omitted). Thus, the continuing violations doctrine

21 7 The Ninth Circuit cited two examples. Bird, 935 F.3d at 747, citing Lyons v. England, 307

F.3d 1092, 1107 (9th Cir. 2002) (reasoning “that a plaintiff's “assertion that [a] series of discrete

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acts flows from a company-wide, or systematic, discriminatory practice will not succeed in

23 establishing the employer’s liability for acts occurring outside the limitations period.”); Cherosky

v. Henderson, 330 F.3d 1243, 1247 (9th Cir. 2003) (rejecting argument that plaintiffs could

24 recover damages under the systematic branch of the continuing violations doctrine as long as such

acts were conducted under a discriminatory company policy, deciding that “[t]he allegation that. .

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. discrete acts were undertaken pursuant to a discriminatory policy does not extend the statutory

26 limitations period.” Bird, 330 F.3d at 1247.

27 8 The Ninth Circuit further noted that while some room was left for “the systematic branch to

apply to class-wide pattern-or-practice claims,” . . . “we have consistently refused to apply the

28 systematic branch to rescue individualized claims that are otherwise time-barred.” Id.

1 does not save any claim based on the moving defendants’ acts or omissions prior to November 1,

2 2014.

3 c. Fraudulent-concealment doctrine

4 Plaintiff now argues that plaintiff’s doctors and physical therapists concealed the extent of

5 the injuries to plaintiff’s hand, apparently invoking the fraudulent concealment doctrine. (ECF

6 No. 92 at 3.)

7 A federal statute of limitations may be equitably tolled when a plaintiff remains in

8 ignorance of a cause of action because defendants fraudulently concealed facts material to the

9 plaintiff's claim. Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946). For the doctrine of

10 fraudulent concealment to apply, a plaintiff must show “affirmative conduct” by defendants

11 which would, in the circumstances given, lead a reasonable person to believe that he did not have

12 a claim for relief. Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1415 (9th Cir. 1987). As the

13 Ninth Circuit explained: “To invoke the doctrine in the complaint, [plaintiff] must plead with

14 particularity the facts giving rise to the fraudulent concealment claim and must establish that they

15 used due diligence in trying to uncover the facts.” Id. at 1415-16. Silence or passive conduct on

16 the part of the defendants would not constitute fraudulent concealment, and a plaintiff's ignorance

17 of the cause of action, without more, does not toll the statute. Id. at 1416.

18 Here, plaintiff’s complaint does not provide facts sufficient to conclude that he could not

19 have discovered the basis of his claim before November of 2016 or that any of the moving

20 defendants concealed this information from him. See Lyons v. Michael & Associates, 824 F.3d

21 1169, 1171 (9th Cir. 2016). Rather, as set forth above, plaintiff had knowledge of the injuries to

22 his hand in 2014.

23 ////

24 d. Conclusion

25 Because plaintiff’s claims are time-barred, he cannot address such defect by amendment.

26 “Leave to amend may be denied if the proposed amendment is futile or would be subject to

27 dismissal.” Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 (9th Cir. 2018), citing Carrico v.

28 Cty and Cnty. Of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011). Where a § 1983 claim is

1 barred by the statute of limitations, “amending the complaint would have been futile.” Wheeler,

2 894 F.3d at 1059-60. Therefore, defendants Dr. Galang, Dr. Hawkins, Martinez, and Toralba

3 should be dismissed with prejudice. Monical v. Jackson Cnty., 2021 WL 1110197, at *4 (D. Or.

4 Mar. 23, 2021) (finding continuing violation doctrine does not apply to actions occurring outside

5 the statute of limitations, and granting motion to dismiss complaint with prejudice as to such

6 time-barred claims); Panah v. Dep’t of Corr. & Rehab., 2020 WL 5798275, at *13 (N.D. Cal.

7 Sept. 29, 2020), reconsideration denied, 2020 WL 8613843 (N.D. Cal. Dec. 17, 2020) (finding

8 Panah’s “continuing violation theory fails to save any of the challenged claims from being

9 untimely,” granting the motion to dismiss certain federal claims from complaint as untimely).

10 III. Motion to Amend

11 On January 21, 2021, plaintiff filed a motion to amend, accompanied by his proposed first

12 amended complaint. All defendants except defendant Ibrahim oppose plaintiff’s motion to

13 amend. (ECF Nos. 83 (Dr. Galang and Dr. Crooks); 84 (K. Martinez, L. Micael, A. Toralba, and

14 Dr. Hawkins); 85 (Dr. Lin).) Plaintiff filed a reply to the opposition filed by defendants Martinez,

15 Toralba and Dr. Hawkins on March 17, 2021. (ECF No. 87.) On March 18, 2021, plaintiff filed

16 his response to the opposition to plaintiff’s motion to amend. (ECF No. 90.)

17 In light of the above ruling on defendants’ motions to dismiss, portions of the proposed

18 amended complaint are futile; therefore, leave to amend to file the proposed amended complaint

19 should be denied. However, in an abundance of caution, plaintiff’s motion to amend is denied

20 without prejudice to allow plaintiff to renew his motion to amend and proposed amended

21 complaint in light of the instant order.

22 Accordingly, IT IS HEREBY ORDERED that:

23 1. The findings and recommendations filed August 7, 2020, are adopted in full.

24 2. Defendant Lin’s motion to dismiss (ECF No. 11) is granted.

25 3. Defendant Lin is dismissed without prejudice.

26 4. The findings and recommendations filed October 15, 2020 (ECF No. 54), are adopted

27 in full.

28 5. Defendant Micael’s motion to dismiss (ECF No. 40) is denied.

1 6. Defendant Lizarraga’s motion to dismiss (ECF No. 40) is granted.

2 7. Defendant Lizarraga is dismissed without prejudice.

3 8. Defendant Galang’s objections to plaintiff’s exhibits appended to his objections are

4 sustained (ECF No. 80); the court has not considered such exhibits.

5 9. The motions to dismiss filed by defendants Toralba, Martinez, Dr. Galang, and Dr.

6 Hawkins (ECF Nos. 17, 30, 37, 40) are granted.

7 10. Defendants Toralba, Martinez, Dr. Galang, and Dr. Hawkins are dismissed with

8 prejudice.

9 11. Plaintiff’s motion to amend (ECF No. 76) is denied without prejudice to renewal

10 consistent with this order.

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DATED: April 29, 2021 /s/ John A. Mendez

13

THE HONORABLE JOHN A. MENDEZ

14 UNITED STATES DISTRICT COURT JUDGE

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