Harris v. Osterlie, et al.

Filing 22

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 1/23/2017 ORDERING the Clerk to assign a district judge to this case. IT IS RECOMMENDED that defendants' 15 motion to dismiss be granted; and plaintiff's case be dismissed with prejudice. Assigned and referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MILTON D. HARRIS,

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No. 2:15-cv-01041 DB

Plaintiff,

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v.

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PAUL OSTERLIE, JR., et al.,

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Defendants.

ORDER AND FINDINGS AND
RECOMMENDATIONS

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983 alleging deliberate indifference to his medical needs by his work

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supervisor (defendant Osterlie) and a medical practitioner (defendant Todd). Defendants move to

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dismiss the action as untimely. For the reasons outlined below, the undersigned respectfully

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recommends that defendants’ motion to dismiss be granted as the action is barred by the statute of

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limitations and orders the clerk’s office to assign a district judge to this case to issue a ruling

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based upon these findings and recommendations.

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I.

Factual and Procedural Background
On January 12, 2009, plaintiff allegedly damaged a ligament in his lower back while

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performing his work duties. (ECF No. 9.) Plaintiff did not immediately report the injury to his

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supervisor, defendant Osterlie, because he did not feel any pain at the time. (Id. at 5.) On

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February 23, 2009, plaintiff realized he was in pain and reported this to defendant Osterlie, who

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sent plaintiff to the facility medical clinic. (Id. at 6.)

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While in medical, plaintiff alleges that defendant Todd, “did absolutely nothing by way of

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thorough examination or a evaluation[.] ” (Id.) Upon returning to work, defendant Osterlie asked

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plaintiff “what had transpired,” and he explained that Todd only looked at his back without

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attempting to assess the injury. (Id.) Defendant Osterlie then instructed that plaintiff be moved to

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a less strenuous assignment. (Id.) Plaintiff claims he was in constant pain, and on March 3, 2009

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he requested to file a workers compensation claim. (Id. at 6-7.) The same day, plaintiff returned

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to medical and alleges that defendant Todd issued him a two-day lay-in without examining,

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evaluating, diagnosing, or scheduling plaintiff to see a specialist. (Id. at 12-13.)

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Plaintiff asserts claims for deliberate indifference to a medical need against defendants

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Osterlie and Todd. (Id. at 22-25.) Plaintiff claims to have “exhausted all available administrative

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remedies regarding these matters described in this complaint,” by filing an inmate grievance on

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August 4, 2014, which was denied at all three levels of review. (Id. at 21-22.)

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Plaintiff filed a lawsuit in December 2012 against defendant Osterlie and several others in

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the Eastern District of California seeking the same remedy -- damages for a medical deliberate

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indifference claim under the Eighth Amendment -- for the same course of conduct. Harris v.

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Hawkins, No. 2:12-cv-3067-KJM-EFB P, ECF No. 1 (E.D. Cal. Dec. 20, 2012). Defendant Todd

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was not named in the 2012 lawsuit. Id. On September 30, 2014, the district judge assigned to

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that case dismissed the action without prejudice for failure to exhaust administrative remedies.

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Harris v. Hawkins, No. 2:12-cv-3067-KJM-EFB P, ECF No. 36 (E.D. Cal. Sept. 30, 2014).

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II.

Legal Standard for Motion to Dismiss

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To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

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complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

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is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must accept as true the allegations of

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the complaint, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and

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construe the pleading in the light most favorable to plaintiff, Jenkins v. McKeithen, 395 U.S. 411,
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421 (1969). Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520 (1972).

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A district court may dismiss an action under Rule 12(b)(6) “[i]f the running of the statute

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[of limitations period] is apparent on the face of the complaint,” and “if the assertions of the

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complaint, read with the required liberality, would not permit the plaintiff to prove that the statute

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was tolled.” Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). A motion to

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dismiss based on the statute of limitations cannot be granted “if the factual and legal issues are

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not sufficiently clear to permit [the court] to determine with certainty whether the doctrine [of

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equitable tolling] could be successfully invoked.” Supermail Cargo, Inc. v. United States, 68

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F.3d 1204, 1207 (9th Cir. 1995).

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The court may consider facts established by exhibits attached to the complaint. Durning

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v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts

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that may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th

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Cir. 1987); and matters of public record, including pleadings, orders, and similar papers filed with

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the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986).

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III.

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Statute of Limitations Period
There is no specified statute of limitations under 42 U.S.C. § 1983, so the federal courts

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look to the law of the state in which the cause of action arose and apply the state law of

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limitations. Pouncil v. Tilton, 704 F.3d 568, 573 (9th Cir. 2012). For actions under 42 U.S.C. §

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1983, courts apply the forum state’s statute of limitations for personal injury actions, along with

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the state’s law regarding tolling, except to the extent any of these laws is inconsistent with federal

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law. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). In California, the statute of limitations

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for personal injury actions is two years. Cal. Code Civ. Proc. § 335.1. Prisoners serving a term

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less than life have statutory tolling for an additional two years, which results in a total limitations

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period of four years. See id. § 352.1(a). California law also requires that “the applicable statute

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of limitations must be tolled while a prisoner completes the mandatory exhaustion process.”

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Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005).

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“Although state law determines the length of the limitations period, ‘federal law

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

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2002) (quoting Morales v. City of Los Angeles, 214 F.3d 1151, 1153–54 (9th Cir.2000)). Under

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federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is

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the basis of the action. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999); see also Azer,

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306 F.3d at 936.

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All of the acts and omissions plaintiff complains of happened in February and March

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2009. On January 12, 2009, plaintiff claims to have been injured while performing work duties.

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(ECF No. 9 at 5.) Plaintiff did not complain until February 23, 2009. (Id.) Plaintiff reported his

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injury to defendant Osterlie, who sent him to the facility medical clinic where he was seen by

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defendant Todd who he claims failed to examine him. (Id. at 5-6.) Defendant Todd sent plaintiff

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back to his job assignment where defendant Osterlie instructed that he be moved to a less

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strenuous assignment. (Id. at 6.)

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On March 3, 2009, after realizing that defendant Osterlie “had no intention of summoning

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the medical treatment this Plaintiff was in need of,” plaintiff asked to make a “workman

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compensation claim” and went back to the medical clinic, where defendant Todd issued him a

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two-day lay-in. (Id. at 7, 13.) During the period between February 23, 2009 to March 26, 2009,

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plaintiff alleges that he was “made to work” even though he was suffering and in pain. (See id. at

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6.)

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According to this timeline, plaintiff’s claims accrued no later than March 2009 because he

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knew or had reason to know of the injuries being pled in this case. See TwoRivers, 174 F.3d at

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991 (“Under federal law, a claim accrues when the plaintiff knows or has reason to know of the

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injury which is the basis of the action.”). Plaintiff, in his opposition, concedes that the statute of

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limitations period for his claims is four years and that it began to run in March of 2009; however,

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he asserts that the statute of limitations was equitably tolled for portions of that period, which

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makes his May 13, 2015 complaint in this action timely. (ECF No. 20.)

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IV.

Legal Analysis
Plaintiff’s claims against both defendants are barred by the statute of limitations. As

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noted above, plaintiff’s claim accrued, and the statute of limitations started running, in March of

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2009 when plaintiff alleges he was forced to work despite his injury and inadequate healthcare.

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(ECF No. 9 at 6.) He was entitled to four years (the sum of the time allowed by the usual

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limitations period and statutory tolling under section § 352.1) from that time to file suit because

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he is a prisoner serving less than a term of life. This means that he had until March 31, 2013, at

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the latest, to file suit. The current suit was not filed until 2015, which is well after the 2013

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deadline.

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Plaintiff’s initial lawsuit in this court did not toll the statute of limitations. California

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treats an action dismissed without prejudice as if “no action has been brought,” unless a statute

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specifies otherwise. Wood v. Elling Corp., 20 Cal.3d 353, 359 (1977). In an appropriate case,

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however, the statute of limitations might be tolled for time spent pursuing a remedy in another

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forum (such as state court) before filing the claim in federal court. Cervantes v. City of San

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Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (quoting Addison v. California, 21 Cal. 3d 313, 317

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(1978)) (equitable tolling “reliev[es] plaintiff from the bar of a limitations statute when,

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possessing several legal remedies he, reasonably and in good faith, pursues one designed to lessen

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the extent of his injuries or damage.”). Plaintiff’s action does not fall under this exception,

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however, because he did not pursue his remedies in another forum before filing his federal suit.

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Federal law provides no relief for plaintiff because his prior lawsuit was dismissed

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without prejudice, enabling him to refile at any time. “[I]f the suit is dismissed without prejudice,

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meaning that it can be refiled, then the tolling effect of the filing of the suit is wiped out and the

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statute of limitations is deemed to have continued running from whenever the cause of action

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accrued, without interruption by that filing.” Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir.

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2000); O'Donnell v. Vencor, Inc., 466 F.3d 1104, 1111 (9th Cir. 2006) (citing with approval

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Chico–Velez v. Roche Prods., Inc., 139 F.3d 56, 59 (1st Cir. 1998), which cited eight federal

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circuits for the rule that the statute of limitations is not tolled when a complaint containing the

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same claims as a later suit is dismissed without prejudice). See also Morris v. Travis, No. 10-cv5

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04010-WHO (PR), 2015 WL 7015327 (N.D. Cal. Nov. 12, 2015) (holding that plaintiff’s

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previous lawsuits did not toll the statute of limitations where they were dismissed without

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prejudice and filed in federal court).

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Plaintiff argues that an administrative appeal he filed in 2012 entitles him to a period of

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equitable tolling from April 1, 2012 through October 25, 2012. (ECF No. 20 at 8.) Plaintiff is

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correct that exhausting administrative remedies does toll the statute of limitations. However, a

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review of the 2012 administrative appeal reveals that plaintiff’s complaints concerned the

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treatment he received from a Dr. Hawkins on dates well after the cause of action here, which

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occurred in February and March of 2009. (ECF No. 20 at 55-58.) There is no indication that

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Plaintiff was claiming that defendants Osterlie or Todd were deliberately indifferent towards

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Plaintiff’s injury as he now claims in this action. Thus, the claims against defendants Osterlie and

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Todd were not exhausted in the 2012 administrative appeal, and defendants Osterlie and Todd

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were not then aware of the claims currently against them.

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Furthermore, plaintiff’s prior district court action was dismissed for failure to exhaust

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administrative remedies against defendant Osterlie. Harris v. Hawkins, No. 2:12-cv-3067-KJM-

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EFB P, ECF No. 36 (E.D. Cal. Sept. 30, 2014). As noted above, defendant Todd was not a party

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to the 2012 lawsuit. Accordingly, plaintiff is not entitled to equitable tolling for the 2012

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administrative appeal because that appeal has no bearing on defendants or the alleged events of

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this action.

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And finally, plaintiff’s administrative appeal filed in August of 2014 was too late to toll

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the statute of limitations, which had already run more than a year prior. While a plaintiff is

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entitled to equitable tolling for the filing of an administrative appeal, any possible tolling from

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such an appeal is rendered moot if the statute of limitations period has already run. As the court

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demonstrated above, plaintiff’s statute of limitations period ran in March of 2013 because his

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2012 lawsuit and 2012 administrative appeal did not toll the limitations period concerning the

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claims asserted in this action.

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Accordingly, this action should be dismissed with prejudice as barred by the statute of
limitations.
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V.

Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED that the clerk’s office assign

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a district judge to this case in order to issue a final order on the motion to dismiss and IT IS

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HEREBY RECOMMENDED that:

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Defendants’ motion to dismiss be granted; and

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Plaintiff’s case be dismissed with prejudice.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Any response to the objections shall be filed and served within fourteen

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days after service of the objections. Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: January 23, 2017

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