limitations period 25 for filing § 1983 action in California governed by residual limitations period for personal 26 injury actions in California, which was then one year and was codified in Cal. Civ. Proc. 1 period, which is now two years; enacted in 2002
How later courts described this case
- limitations period 25 for filing § 1983 action in California governed by residual limitations period for personal 26 injury actions in California, which was then one year and was codified in Cal. Civ. Proc. 1 period, which is now two years; enacted in 2002
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
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ALPHONSO R. CLARK,
11 Case No. 21-06512 BLF (PR)
Plaintiff,
12 ORDER OF DISMISSAL
v.
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NAPA STATE HOSPITAL, et al.,
15 Defendants.
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18 Plaintiff, a state prisoner currently housed at the Napa State Hospital (“NSH”), filed
19 the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against NSH and medical
20 staff. Dkt. No. 1. The matter was originally assigned to the Honorable Magistrate Judge
21 Susan van Keulen, who ordered the matter be reassigned to a district judge. Dkt. No. 4.
22 The matter was reassigned to the Undersigned on September 2, 2021. Dkt. No. 5.
23 Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a separate
24 order. Dkt. No. 6.
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26 DISCUSSION
27 A. Standard of Review
1 prisoner seeks redress from a governmental entity or officer or employee of a
2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any
3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim
4 upon which relief may be granted or seek monetary relief from a defendant who is immune
5 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally
6 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
8 elements: (1) that a right secured by the Constitution or laws of the United States was
9 violated, and (2) that the alleged violation was committed by a person acting under the
10 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
11 B. Plaintiff’s Claims
12 Plaintiff claims that Defendants misdiagnosed an abscess as a fistula sometime in
13 2016, and he had to have two operations “because of it.” Dkt. No. 1 at 1-2. Plaintiff
14 claims the misdiagnosis was due to medical malpractice by Dr. Chough. Id. at 2. Plaintiff
15 claims that when he asked Chief Medical Doctor Romono to refer him to another surgeon
16 for a second opinion, he refused. Id. Plaintiff states that Nurse Rosa, a wound care
17 specialist, believed he had a fistula rather than an abscess “but was in fear of losing her job
18 if going against Dr. Chough.” Id. at 3. Plaintiff claims that the Medical Board of
19 California refused to take action against Dr. Chough for medical malpractice in September
20 2018, and that the Board was wrong for not reprimanding Dr. Chough. Id. at 1-2. For
21 relief, Plaintiff seeks a second medical opinion, for Dr. Chough to be reprimanded, and
22 damages. Id. at 3.
23 The complaint fails to state a cognizable claim. Deliberate indifference to a
24 prisoner’s serious medical needs violates the Eighth Amendment’s proscription against
25 cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin
26 v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on other grounds by WMX
1 determination of “deliberate indifference” involves an examination of two elements: the
2 seriousness of the prisoner’s medical need and the nature of the defendant’s response to
3 that need. See McGuckin, 974 F.2d at 1059. But nowhere in the complaint does Plaintiff
4 claim that any Defendant acted with deliberate indifference. Rather, he repeatedly states
5 that Defendants misdiagnosed him and denied him a second opinion, which lead to
6 inadequate treatment. See supra at 2. As Plaintiff alleges, these actions may indicate
7 medical malpractice. However, a claim of medical malpractice or negligence is
8 insufficient to make out a violation of the Eighth Amendment. See Toguchi v. Chung, 391
9 F.3d 1051, 1060 (9th Cir. 2004); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002);
10 Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981); see, e.g., McGuckin, 974 F.2d at
11 1059 (mere negligence in diagnosing or treating a medical condition, without more, does
12 not violate a prisoner’s 8th Amendment rights). There is no allegation suggesting that
13 Defendants’ actions were deliberate rather than merely negligent to implicate the Eighth
14 Amendment.
15 Even if Plaintiff were able to state an Eighth Amendment claim, his claim would be
16 untimely. Section 1983 does not contain its own limitations period. The appropriate
17 period is that of the forum state’s statute of limitations for personal injury torts. See
18 Wilson v. Garcia, 471 U.S. 261, 276 (1985), superseded by statute on other grounds as
19 stated in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 377-78 (2004); TwoRivers v.
20 Lewis, 174 F.3d 987, 991 (9th Cir. 1999); Elliott v. City of Union City, 25 F.3d 800, 802
21 (9th Cir. 1994). In California, the general residual statute of limitations for personal injury
22 actions is the two-year period set forth at California Civil Procedure Code § 335.1 and is
23 the applicable statute in § 1983 actions. See Maldonado v. Harris, 370 F.3d 945, 954 (9th
24 Cir. 2004); see also Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999) (limitations period
25 for filing § 1983 action in California governed by residual limitations period for personal
26 injury actions in California, which was then one year and was codified in Cal. Civ. Proc.
1 period, which is now two years; enacted in 2002).
2 A federal court must give effect to a state’s tolling provisions. See Hardin v.
3 Straub, 490 U.S. 536, 543-44 (1989); Marks v. Parra, 785 F.2d 1419, 1419-20 (9th Cir.
4 1986). In California, this includes tolling the statute of limitations during imprisonment
5 and while criminal charges are pending. The statute of limitations begins to run
6 immediately after the recognized disability period ends. See Cabrera, 159 F.3d at 378-79
7 (following California Law).
8 California Civil Procedure Code section 352.1 recognizes imprisonment as a
9 disability that tolls the statute of limitations when a person is “imprisoned on a criminal
10 charge, or in execution under the sentence of a criminal court for a term of less than for
11 life.” See Cal. Civ. Proc. Code § 352.1(a). The tolling is not indefinite, however; the
12 disability of imprisonment delays the accrual of the cause of action for a maximum of two
13 years. See id.; Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999). Thus, an inmate has
14 four years to bring a § 1983 claim for damages in California, i.e., the regular two year
15 period under section 335.1 plus two years during which accrual was postponed due to the
16 disability of imprisonment.
17 Here, Plaintiff claims that the alleged misdiagnosis occurred sometime in 2016. See
18 supra at 2. Assuming Plaintiff is entitled to the tolling provision for incarceration, he had
19 a total of four years since his misdiagnosis in 2016 to file a timely action, i.e., possibly no
20 later than December 31, 2020. However, Plaintiff did not file this action until August 24,
21 2021, which is nearly eight months after 2020 ended. Dkt. No. 1. Accordingly, the instant
22 action is untimely by at least eight months and must be dismissed as such.
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24 CONCLUSION
25 For the foregoing reasons, the complaint is DISMISSED for failure to state a claim
26 for which relief can be granted and as untimely.
1 IT IS SO ORDERED.
2 || Dated: _ December 21, 2021 bol Loh emuty)
BETH LABSON FREEMAN
3 United States District Judge
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rder of Dismissal
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