White v. Bowser

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

ANTHONY SAM WHITE, Case No. 2:19-cv-01164-CL

Plaintiff, OPINION AND ORDER

V.

TROY BOWSER, Superintendent; SHERRY

ILES, TRCI ADA Corr.; MARCIA VENTURA,

Statewide ADA Corr.; SHANNON JOHNSTON,

TRCI Nurse Manager; BRIDGITT AMSBERRY;

D, HARDY, TRCI Nurse,

Defendants. .

CLARKE, Magistrate Judge:

Plaintiff, an inmate formerly housed at the Two Rivers Correctional Institution (TRC),

filed this action alleging violations of his rights under the federal constitution and the Americans

with Disabilities Act (ADA). Defendants move for dismissal on grounds that plaintiffs claims

are barred by the statute of limitations. I deny the motion at this stage of the proceedings.!

| Plaintiff has not yet responded to defendants’ motion and recently requested an

additional 90 days to respond. An extension for that length of time is not warranted, and, after

further review, plaintiff's response is not necessary for resolution of defendants’ motion.

1 -OPINION AND ORDER .

DISCUSSION

Plaintiff is a paraplegic inmate in the custody of the Oregon Department of Corrections

(ODOC). Plaintiff alleges that defendants violated his rights under the Eighth Amendment and

the ADA by denying him mobility aids and adequate housing while he was housed in the TRCI

Disciplinary Segregation Unit (DSU). Compl. at 4-7 (ECF No. 2). Defendants move for

dismissal of plaintiff's claims, arguing that plaintiff filed suit beyond the relevant statute of

limitations.

A two-year statute of limitations applies to plaintiff's claims under 42 U.S.C. § 1983 and

the ADA, meaning that plaintiff was required to file suit within two years of the alleged

violations of his rights. See Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002) (a two-year

statute of limitations applies to § 1983 claims); Savona v. S. Oregon Univ., 2018 WL 1547843, at

*4 (D. Or. Mar. 29, 2018) (a two-year statute of limitations applies to ADA claims unrelated to

employment); Walden v. Dawson, 2014 WL 5810824, at *6 (D. Or. Nov. 7, 2014) (accord).

According to plaintiff's Complaint, the actions giving rise to his claims — the denial of mobility

aids and adequate housing in DSU — occurred between February and April of 2017. However,

plaintiff did not file suit until July 18, 2019, more than two years after the alleged violations of

his rights. Defendants thus maintain that plaintiff's Complaint is untimely.

Notably, plaintiff also alleges that he filed several administrative grievances regarding the

alleged violations of his rights. Compl. at 4-6. “This circuit has, with other circuits, adopted a

mandatory tolling provision for claims subject to the Prison Litigation Reform Act.” Soto v.

Sweetman, 882 F.3d 865, 872 (9th Cir. 2018). Accordingly, the statute of limitations is tolled

while a prisoner exhausts the relevant prison grievance process as required by the PLRA. See

2 -OPINION AND ORDER

Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005) (“the applicable statute of limitations must

be tolled while a prisoner completes the mandatory exhaustion process”).

Based on plaintiffs allegations, it is unclear whether he properly exhausted the ODOC

grievance process and whether and for how long the limitations period was tolled. While it seems

unlikely that the limitations period was tolled for several months while plaintiff exhausted the

grievance process, I must construe all inferences in favor of plaintiff and afford him “the benefit

of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). Because I

. cannot determine from the face of the Complaint whether exhaustion of the grievance process

tolled the statute of limitations, dismissal is not appropriate.

Plaintiff also renews his motion for appointment of counsel. As explained in a previous

Order, plaintiff is able to articulate his claims and he does not establish that this is an exceptional

case warranting the appointment of volunteer counsel. Accordingly, the motion is denied.

CONCLUSION

Defendants’ Motion to Dismiss (ECF No. 20) is DENIED with leave to renew at a later

stage of the proceedings. Plaintiff's Motion for Extension of Time (ECF No. 30) is DENIED as

moot. Plaintiff's Motion for Appointment of Counsel (ECF No. 28) is DENIED with leave to

renew if the case proceeds beyond summary judgment.

IT IS SO ORDERED.

DATED thisaO”day of March, 2020.

/3/ thay D- Clarke,

MARK D. CLARKE

United States Magistrate Judge

3. - OPINION AND ORDER