Benge #137719 v. Corizon Health LLC et al

Filing 72

ORDER: The reference to the Magistrate Judge is withdrawn as to ADC Defendants' Motion to Dismiss 29 and Plaintiff's Emergency Motion for Preliminary Injunction 38 . Plaintiff's Emergency Motion for Preliminary Injunction 38 is denied as moot. ADC Defendants' Motion to Dismiss 29 is denied. Signed by Judge Michael T Liburdi on 10/04/2019. (REK)

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JDN

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Joseph Benge,

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No. CV 18-00349-PHX-MTL (CDB)

Plaintiff,
vs.

ORDER

Corizon Health LLC, et al.,
Defendants.

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Plaintiff Robert Joseph Benge, who was formerly confined in the Arizona

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Department of Corrections (ADC),1 brought this pro se civil rights action under 42

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U.S.C. § 1983 against Corizon Health LLC; Dr. Julia Barnett; Nurse Practitioners (NP)

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Carrie Smalley and Melanie Louzon; Associate Deputy Wardens Brenda Burgess and

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David Summers; and Lieutenant Anita Hudson. (Docs. 20, 30, 46.) Before the Court are

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Benge’s Emergency Motion for Preliminary Injunction (Doc. 38) and Hudson, Summers,

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and Burgess’s (“ADC Defendants”) Motion to Dismiss (Doc. 29). The Court will deny

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both Motions.

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I.

Background

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In Count One of his First Amended Complaint, Benge alleged an Eighth

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Amendment medical care claim. (Doc. 20 at 7.) He asserted that, following a neck

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injury in March 2014, NP Louzon failed to address Benge’s shoulder and neck pain,

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Benge was released from custody in August 2019 and now resides in
Thomasville, North Carolina. (Docs. 63, 65, 69.)

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failed to order tests, and ultimately discontinued pain medication despite his repeated

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requests for medical assistance and multiple incidents of losing consciousness. (Id.)

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Eventually, Benge had an MRI, which showed severe spinal cord compression, and he

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was admitted to the hospital and underwent emergency spinal cord surgery. (Id. at 7–8.)

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Benge alleged that when he returned to the prison, NP Smalley discontinued his

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morphine pain medication “cold turkey,” which caused him to suffer withdrawal

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symptoms, and Smalley and Dr. Barnett then refused to prescribe him any other pain

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medication pursuant to a Corizon/ADC policy that prohibited pain medication even for

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verified medical needs. (Id.)

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In Count Two, Benge alleged an Eighth Amendment failure-to-protect claim. (Id.

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at 14.) Benge alleged that he suffered the neck injury discussed above in March 2014

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after he was assaulted by intoxicated prisoners. (Id.) He alleged that he was assaulted

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again by intoxicated prisoners in April and June 2014. (Id. at 6.) Benge stated that he

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submitted grievances informing officials that he did not feel safe and that he had been

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assaulted numerous times by intoxicated prisoners. (Id. at 14.) Benge claimed that from

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January 2014 to November 2015, he repeatedly informed Burgess, Summers, and Hudson

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about the manufacture, sale, and consumption of prison made alcohol, or hooch;

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however, Defendants failed to take anything more than cosmetic and short-term measures

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in response to Benge’s concerns. (Id. at 14–15.)

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In April 2019, the parties filed their pending Motions. Benge filed an Emergency

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Motion for Preliminary Injunction seeking various forms of relief related to medical care,

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including orders for Defendants to bring him to a neurosurgeon and nephrologist; orders

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for a back MRI and physical therapy; and orders for a wheelchair, cane, and ice. (Doc.

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38.) ADC Defendants filed a Motion to Dismiss under Federal Rule of Civil Procedure

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12(b)(6), arguing that Benge’s claims in Count Two are barred by the applicable statute

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of limitations. (Doc. 29.)

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II.

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Preliminary Injunction
A former prisoner’s claim for injunctive relief becomes moot following his release
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from custody. See Alvarez v. Hill, 667 F.3d 1061, 1063–64 (9th Cir. 2012) (former

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prisoner’s declaratory and injunctive relief claims moot following release from custody);

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Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (“[a]n inmate’s release from prison

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while his claims are pending generally will moot any claims for injunctive relief relating

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to the prison’s policies unless the suit has been certified as a class action”) (citing

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Preiser v. Newkirk, 422 U.S. 395, 402–03 (1975)). Because Benge is no longer in

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custody, his request for injunctive relief in the form of specific medical care is moot, and

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his Emergency Motion for Preliminary Injunction will be denied.

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III.

Statute of Limitations

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A.

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When the statute of limitations forms the basis of a motion to dismiss for failure to

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state a claim, the motion can be granted if the running of the statute is apparent on the

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face of the complaint, and “the assertions of the complaint, read with the required

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liberality, would not permit the plaintiff to prove that the statute was tolled.” Jablon v.

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Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980); see also TwoRivers v. Lewis, 174

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F.3d 987, 991 (9th Cir. 1999.) Although courts will not normally look beyond the

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pleadings in resolving a Rule 12(b)(6) motion, Lee v. City of Los Angeles, 250 F.3d 668,

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688 (9th Cir. 2001), a “court may consider material that the plaintiff properly submitted

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as part of the complaint or, even if not physically attached to the complaint, material that

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is not contended to be inauthentic and that is necessarily relied upon by the plaintiff’s

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complaint.” Id.

Governing Standard

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Section 1983 does not include its own statute of limitations. TwoRivers, 174 F.3d

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at 991. Therefore, federal courts apply the statute of limitations governing personal

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injury claims in the forum state. Wilson v. Garcia, 471 U.S. 261, 280 (1985); TwoRivers,

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174 F.3d at 991. In Arizona, the limitations period for personal injury claims is two

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years. TwoRivers, 174 F.3d at 991; see also Ariz. Rev. Stat. § 12-542 (providing that

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actions for personal injury must be commenced within two years after the cause of action

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accrues).
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Although the statute of limitations applicable to § 1983 claims is borrowed from

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state law, federal law continues to govern when a § 1983 claim accrues. Wallace v. Kato,

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549 U.S. 384, 388 (2007); TwoRivers, 174 F.3d at 991. Under federal law, a claim

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

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of the action.” TwoRivers, 174 F.3d at 991; Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.

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1996.) The Court must apply any state rule for tolling to actions brought under § 1983.

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Hardin v. Straub, 490 U.S. 536, 544 (1989); Johnson v. State of Cal., 207 F.3d 650, 653

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(9th Cir. 2000); TwoRivers, 174 F.3d at 992.

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applicable statute of limitations must be tolled while a prisoner completes the mandatory

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And in prisoner § 1983 cases, “the

exhaustion process.” Brown v. Valoff, 422 F.3d 926, 942–43 (9th Cir. 2005).

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B.

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ADC Defendants argue that Benge’s failure-to-protect claim arose on March 18,

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2014, the date he was assaulted, or, at the latest, in November 2015, based on his

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allegation that ADC Defendants failed to protect him from January 2014 to November

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2015. (Doc. 29 at 5.) ADC Defendants submit that Benge was therefore required to file

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his lawsuit by November 2017; however, he did not initiate this action until February 1,

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2018. (Id.)2 ADC Defendants therefore contend that the claims in Count Two must be

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dismissed as time-barred. (Id.)

Discussion

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Benge opposes the Motion on the grounds that the Court already determined that

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he stated a failure-to-protect claim against ADC Defendants; he did not learn that his

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spinal cord injury was irreversible until June 2016; and the statute of limitations was

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tolled while he was exhausting his administrative remedies. (Doc. 36 at 2–9.) In their

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Reply, Defendants assert that Benge had reason to know of his injury the day of his

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ADC Defendants rely on an incorrect date. Benge initiated this action on
January 26, 2018. (Doc. 1 at 21.) See Houston v. Lack, 487 U.S. 266, 270–71 (1988)
(under the prison mailbox rule, a legal document is deemed “filed” when handed by the
prisoner to a prison official for mailing, and that date is determined by the date the
prisoner signs the document rather the date it is filed with the clerk of court); Douglas v.
Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (applying the prison mailbox rule to § 1983
lawsuits by pro se prisoners).
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assault in March 2014, so that is the date the statute of limitations began the run. (Doc.

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37 at 2–3.)

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Benge’s failure-to-protect claim is not based on one isolated incident in March

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2014. Rather, his claim is based on allegations of repeated assaults, injuries as a result of

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those assaults, and repeated failures by ADC Defendants to respond to Benge’s

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grievances and notices that intoxicated prisoners presented a threat to his safety. (Doc.

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20.) Because Benge specifically alleged that from January 2014 to November 2015,

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ADC Defendants failed to protect him, the statute of limitations did not begin to run until

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November 2015. (Id. at 14.) See O’Loghlin v. Cnty. of Orange, 229 F.3d 871, 875 (9th

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Cir. 2000) (holding that the continuing violation doctrine is meant “to prevent a

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defendant from using its earlier illegal conduct to avoid liability for later illegal conduct

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of the same sort”); see also Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (“[t]he

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continuing violation theory applies to § 1983 actions”).

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As mentioned, the two-year statute of limitations must be tolled for the period that

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Benge was completing the mandatory administrative remedies at the prison. Brown, 422

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F.3d at 942–43. In his First Amended Complaint, Benge specifically alleged that he

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initiated administrative remedies for his failure-to-protect claim and that he appealed his

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request for administrative relief to the highest level. (Doc. 20 at 14.) Indeed, Benge’s

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claim is based in part on allegations that he submitted grievances informing ADC

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Defendants of the risk of harm to his safety. (Id.) Despite these allegations, and despite

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the fact that Benge argued in his opposition to ADC Defendants’ Motion that tolling for

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exhaustion applies, ADC Defendants wholly failed to the address the tolling requirement.

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To dismiss a claim as untimely on a Rule 12(b)(6) motion, it must “appear[ ]

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beyond doubt that the plaintiff can prove no set of facts that would establish the

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timeliness of the claim.” Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1207 (9th

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Cir. 1995). That is not the case here. In his First Amended Complaint, Benge did not

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indicate the dates of his administrative grievances and responses thereto, and he was not

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required to do so at the pleading stage. Jones v. Bock, 549 U.S. 199, 216 (2007)
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(prisoners are not required to specially plead or demonstrate exhaustion in their

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complaints). Thus, it is unclear how long the statute of limitations must be tolled in this

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case, and the Court cannot conclude based on the face of the First Amended Complaint

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that Benge’s failure-to-protect claim is time-barred. Consequently, ADC Defendants’

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Motion to Dismiss will be denied.

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IT IS ORDERED:

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(1)

The reference to the Magistrate Judge is withdrawn as to ADC Defendants’

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Motion to Dismiss (Doc. 29) and Plaintiff’s Emergency Motion for Preliminary

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Injunction (Doc. 38.)

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(2)

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denied as moot.

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(3)

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Dated this 4th day of October, 2019.

Plaintiff’s Emergency Motion for Preliminary Injunction (Doc. 38) is
ADC Defendants’ Motion to Dismiss (Doc. 29) is denied.

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