Hogan v. Correctional Medical Services et al

Filing 24

MEMORANDUM DECISION AND ORDER granting in part 17 Motion to Dismiss. All un-served Defendants must be served no later than 60 days after entry of this Order, or claims against them will be dismissed. Any proposed amended complaints, with accompanyi ng motions, must be filed no later than 90 days after entry of this Order. All discovery shall be completed no later than 180 days after entry of this Order. All requests for Subpoenas must be made within 150 days after entry of this Order. All motio ns for summary judgment and otherpotentially dispositive motions shall be filed with accompanying briefs nolater than 210 days after entry of this Order. Responsive briefs to suchmotions shall be filed within 30 days after service of motions. Reply briefs,if any, shall be filed within 14 days after service of responses. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

TODD AUSTIN HOGAN,
Plaintiff,

Case No. 1:12-cv-00295-EJL
MEMORANDUM DECISION AND
ORDER

vs.
CORRECTIONAL MEDICAL
SERVICES (CMS), DR. ALICE
DAWSON, DR. GARRETT,
LORNA HUFFMAN, KATHLEEN
NIEKO R.N., JAN EPP, JOHN DOE #1,
Defendants.

Pending before the Court in this prisoner civil rights action is a Motion to Dismiss
filed by Defendants April Dawson, M.D., and Kathy Niecko. (Dkt. 17.) Plaintiff has filed
a Response, and Defendants have filed a Reply. (Dkts. 20, 21.)
Having fully reviewed the record, the Court finds that the parties have adequately
presented the facts and legal arguments in the briefs and record and that the decisional
process would not be significantly aided by oral argument. Therefore, the Court will
decide this matter on the written motions, briefs and record without oral argument. D.
Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.

MEMORANDUM DECISION AND ORDER - 1

REVIEW OF DEFENDANTS’ MOTION TO DISMISS
Defendants assert that many of the claims in Plaintiff’s Complaint are subject to
dismissal with prejudice because his claims were filed beyond the statute of limitations
period. Defendants argue that the remaining claims were not properly exhausted through
the prison’s administrative grievance process before this action was filed, and are subject
to dismissal without prejudice. Defendants also assert that Plaintiff’s state law claims
should be dismissed for failure to follow the statutory prerequisites for bringing medical
malpractice claims. The Court will consider each argument.
1.

Background
Plaintiff alleges that Defendants Dr. Dawson and Ms. Niecko provided medical

care for his shoulder injury in a deliberately indifferent manner between 2004 and 2012,
while Plaintiff was imprisoned at the Idaho State Correctional Institution (ISCI).
Plaintiff’s Complaint was notarized and filed on June 12, 2012. (Dkt. 3.) Earlier in this
action, Judge Bush required Plaintiff to specify which acts complained of occurred within
the statute of limitation period and to specify whether Plaintiff believed any grounds for
equitable tolling existed. In response, Plaintiff filed an Amended Complaint and an
Affidavit. (Dkts. 10, 11.)
In 2004, Plaintiff was experiencing shoulder dislocation and pain. (Plaintiff Aff.,
Dkt. 10-1, p. 3.) He repeatedly complained to Dr. Dawson in 2004, but alleges that Dr.
Dawson told him nothing could be done to fix his shoulder or alleviate his pain, and she
prescribed only Ibuprofen and an extra pillow. She allegedly ignored his complaints of
MEMORANDUM DECISION AND ORDER - 2

shoulder dislocation, and told him to “learn to live with it.” (Plaintiff Aff., Dkt. 11, pp. 34.)
Plaintiff attempted to live with the pain for the next few years, but his dislocations
became more frequent and the pain became severe and chronic. (Plaintiff Aff., p. 5.) In
2008, his shoulder pain became almost unbearable and his shoulder dislocations were so
frequent that he had to tie his right arm across his chest to keep it from dislocating as he
slept. (Id., p. 5.)
In 2008, Dr. Dawson allegedly told Plaintiff that nothing could be done for his
shoulder, and she did not see the need for an extra pillow. (Id., pp. 5-6.) Plaintiff filed a
grievance form, asking to see an orthopedic specialist for his shoulder. He noted that his
shoulder constantly hurt, and pointed out the fact that many injuries are not obvious from
an x-ray. (Zortman Aff., Ex. D, Dkt. 17-5, pp. 2-3.) He stated that if he did not receive a
referral, he would file a lawsuit. Ms. Niecko responded to the grievance by stating that the
x-ray was normal, and he would not receive an orthopedic visit or an extra pillow.
(Zortman Aff., Ex. D, Dkt. 17-5, p. 3.) Ms. Niecko said, however, that Plaintiff would be
scheduled for a second opinion with another prison doctor, Dr. Garrett. (Id.) Plaintiff’s
grievance appeal was denied by Jan Epp. (Dkt. 17-5, p. 3.) Plaintiff alleges that instead of
asking Dr. Garrett, a prison doctor, for a second opinion in 2008, Ms. Niecko should have
sent Plaintiff to an orthopedist. (Id., pp. 6-7.)
In 2009, Plaintiff states that his shoulder would become dislocated simply by
reaching out to pick up a glass of water or putting on a shirt. (Plaintiff Aff., Dkt. 11, p. 9.)
MEMORANDUM DECISION AND ORDER - 3

As a result, he got only a couple of hours of sleep each night. (Id., p. 10.) In 2009, Dr.
Dawson allegedly performed only a superficial examination on Plaintiff and referred him
to physical therapy. (Id., p.10.)
In 2009 or 2010, Plaintiff saw a physical therapist. Plaintiff was not able to do
even the most basic exercises, and the physical therapist allegedly told Plaintiff that his
shoulder appeared severely atrophied and had all of the indicators of a seriously unstable
shoulder. (Id., p. 10.)
On March 16, 2010, Plaintiff was examined by an orthopedic specialist, Dr.
Gustavel, who recommended surgery to reconstruct Plaintiff’s shoulder. Plaintiff alleges
that Dr. Gusvael said that an x-ray of Plaintiff’s shoulder showed that it was not normal.
Plaintiff received the surgery three months later, on June 11, 2010. (Id., pp. 10-11.)
On August 22, 2010, Plaintiff filed a grievance, complaining of the inadequate
medical care received prior to his surgery, and also inadequate care received after the
surgery. On August 26, 2010, the grievance coordinator returned the grievance to
Plaintiff, showing; “As stated in your [2008] grievance, that has already been grieved [].
Any further action on this issue needs to be through the legal process.” (Zortman Aff.,
Dkt. 17-2, p. 6; Dkt. 20-1, p. 2.)
Plaintiff filed this lawsuit nearly two years later, on June 12, 2012. (Dkt. 3.) He
sued Correctional Medical Services (CMS, now Corizon), Dr. Alice (April) Dawson, Dr.
Garrett, Lorna Huffman, Kathleen Niecko, and Jan Epp. He was permitted to proceed on
his Amended Complaint against Dr. Dawson, Kathleen Niecko, and Jan Epp. (Dkt. 10,
MEMORANDUM DECISION AND ORDER - 4

13.) To date, only Dr. Dawson and Ms. Niecko have been served.
2.

Statute of Limitations Defense
A.

Standard of Law

Federal civil rights actions arising in Idaho are governed by a two-year statute of
limitations. See Wilson v. Garcia, 471 U.S. 261 (1985) (later overruled only as to claims
brought under the Securities Exchange Act of 1934, not applicable here); Idaho Code §
5-219. The statute of limitations is tolled while the inmate exhausts administrative
grievance procedures pursuant to the Prison Litigation Reform Act (PLRA). Brown v.
Valoff, 422 F.3d 926, 943 (9th Cir. 2005).
Because Plaintiff has asserted several different reasons to explain why he should
be permitted to maintain his claims for inadequate medical care beginning in 2004 in a
lawsuit filed in 2012, the Court will review several different legal theories that may serve
to render those claims timely.
(1)

Accrual - Discovery Rule

Although the state statute of limitations governs the time period for filing a claim,
federal law governs when a claim accrues. Elliott v. City of Union City, 25 F.3d 800,
801-02 (9th Cir. 1994). The Ninth Circuit has determined that a claim accrues when the
plaintiff knows, or should know, of the injury that is the basis of the cause of action. See
Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996). Under this “discovery rule,” the
statute begins to run once a plaintiff knows of his injury and its cause. Gibson v. United
States, 781 F.2d 1334, 1344 (9th Cir. 1986).
MEMORANDUM DECISION AND ORDER - 5

In medical cases, it is often difficult for a patient to “discover” his injury when
being treated by a physician upon whom he is relying for expert opinions and care.
In Augustine v. United States, 704 F.2d 1074 (9th Cir. 1983), in the context of an
FTCA claim, the court explained that a patient must know or have reason to know both
the existence and the cause of the injury:
When a physician’s failure to diagnose, treat, or warn a patient results in the
development of a more serious medical problem than that which previously
existed, identification of both the injury and its cause may be more difficult
for a patient than if affirmative conduct by a doctor inflicts a new injury.
Where a claim of medical malpractice is based on the failure to diagnose or
treat a pre-existing condition, the injury is not the mere undetected
existence of the medical problem at the time the physician failed to
diagnose or treat the patient or the mere continuance of that same
undiagnosed problem in substantially the same state. Rather, the injury is
the development of the problem into a more serious condition which poses
greater danger to the patient or which requires more extensive treatment. In
this type of case, it is only when the patient becomes aware or through the
exercise of reasonable diligence should have become aware of the
development of a pre-existing problem into a more serious condition that
his cause of action can be said to have accrued.
Id. at 1078.

MEMORANDUM DECISION AND ORDER - 6

(2)

Continuing Violation Doctrine

The continuing violation doctrine can be applied in § 1983 actions. See Gutowsky
v. County of Placer, 108 F.3d 256, 259 (9th Cir. 1997). In Gutowsky, the plaintiff alleged
that the county had an ongoing policy of discrimination throughout her many years of
employment there, and she pointed to specific examples of discrimination outside the
statute of limitations period that were “not the basis of her charge of discrimination” but
rather were “but evidence that a policy of discrimination pervaded [her employer’s]
personnel decisions.” Id. at 260. The court determined that her claim was timely filed,
because “Gutowsky contend[ed] that the widespread policy and practices of
discrimination of which she complain[ed] continued every day of her employment,
including days that fall within the limitation period.” Id.
Since Gutowsky, the law has been narrowed and clarified. See RK Ventures, Inc. v.
City of Seattle, 307 F.3d 1045 (9th Cir. 2002). In general, it is no longer true, as in
Gutowsky, that “if a discriminatory act took place within the limitations period and that
act was ‘related and similar to’ acts that took place outside the limitations period, all the
related acts—including the earlier acts—were actionable as part of a continuing
violation.” RK Ventures, 307 F.3d at 1061.1

1

The Ninth Circuit Court recognized that one of the only remaining viable pathways to maintaining a
cause of action for past acts occurring outside the statute of limitations period would be where a party’s
claims are not based upon discrete acts, but instead on “a series of separate acts that collectively constitute
one unlawful practice,” such as in a hostile work environment claim. RK Ventures, 307 F.3d at 1061 n.13
(internal citation and punctuation omitted). See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
115 (2002) (“Hostile environment claims are different in kind from discrete acts.” ), discussed below.
MEMORANDUM DECISION AND ORDER - 7

More recently, in Pouncil v. Tilton, 704 F. 3d 568, 581–83 (9th Cir. 2012), the
United States Court of Appeals for the Ninth Circuit further clarified that the date a cause
of action accrues is determined by analyzing whether the plaintiff is suing for a
defendant’s discrete act that occurred within the statute of limitations period, allowing a
plaintiff to proceed on the claim; or merely for an inevitable consequence that occurred
within the statute of limitations period as a result of a discrete act that occurred outside
the statute of limitations period, which prevents a plaintiff from proceeding. 704 F.3d at
576–79.
Pouncil relied on Delaware State College v. Ricks, 449 U.S. 250 (1980), which
concluded that a college professor’s challenge to the termination of his tenure accrued
when he received a 1974 letter informing him that he would be terminated as of the end of
the 1975 school year, and not when the actual termination occurred in 1975.
The Ricks theory of accrual was applied in Knox v. Davis, 260 F.3d 1009, 1014
(9th Cir. 2001), where the court held that an attorney’s claim that her legal mail and
visitation rights to prison inmates accrued when she received a letter informing her of
such on January 20, 1996, and not when she continued to receive denials of those rights
up until she filed suit in 1997.
In Knox, the Ninth Circuit Court refused to apply the continuing violation doctrine
to permit Knox to proceed on her claims outside the statute of limitations, reasoning:
[T]his court has repeatedly held that a “mere ‘continuing impact from past
violations is not actionable.’” Grimes v. City and County of San Francisco,
951 F.2d 236, 238–39 (9th Cir.1991); Williams, 665 F.2d at 924 (quoting
MEMORANDUM DECISION AND ORDER - 8

Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 760 (9th Cir.1980));
Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir.1979) (“The
proper focus is upon the time of the discriminatory acts, not upon the time
at which the consequences of the acts became most painful.”). Knox’s cause
of action accrued when she received Tristan’s permanent and complete
suspension letter on January 20, 1996. The continuing violation doctrine is
inapplicable because Knox has failed to establish that a new violation
occurs each time she is denied her visitation or mail privileges. Rather, the
CDC’s subsequent and repeated denials of Knox’s privileges with her
clients is merely the continuing effect of the original suspension.
Id. at 1013. Cf. Ngo v. Woodford, 539 F.3d 1108, 1109-10 (9th Cir. 2008) (context of
determining expiration of time period for administrative exhaustion).2
Both RK Ventures and Pouncil examined National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101 (2002), where the United States Supreme Court held that, while
the continuing violation theory could be applied to a hostile work environment claim “so
long as all acts which constitute the claim are part of the same unlawful employment
practice and at least one act falls within the time period,” the same was not true of a claim
arising from discrete discriminatory or retaliatory acts. Id. at 122. Rather, “discrete acts
that fall within the statutory time period do not make timely [other] acts that fall outside
the time period.” Id. at 111-12. The Morgan opinion relied in part on Bazemore v. Friday,
478 U.S. 385 (1986), “a pattern-or-practice case,” where, in “considering a discriminatory
salary structure, the Court noted that, although the salary discrimination began prior to the

2

In Ngo, the prisoner was notified on December 22, 2000, that he was barred from participating in special
prison programs. Relying on Knox, the court rejected Ngo’s argument that the December 22 order
resulted in a continuing denial of his constitutional rights, so that the 15-day administrative exhaustion
period re-started each day that he was unable to participate in prison special programs. 539 F.3d at 110910. Rather, the court held that the December 22 order gave Ngo “ample notice” that he would be barred
from special programs. Id.
MEMORANDUM DECISION AND ORDER - 9

date that the act was actionable under Title VII, “[e]ach week’s paycheck that deliver[ed]
less to a black than to a similarly situated white is a wrong actionable under Title VII.” Id.
at 395. In Cherosky v. Henderson, 330 F.3d 1243 (9th Cir. 2003), the Ninth Circuit Court
explained: “Morgan makes clear that claims based on discrete acts are only timely where
such acts occurred within the limitations period.” Id. at 1246.
In summary, the present status of the law is that the United States Supreme Court
has narrowed application of the continuing violation doctrine in a series of employment
discrimination cases, and those holdings can be analogized to other civil rights contexts.
A comparison of these cases sometimes leads to the conclusion that “the line between
continuing violations that arise with each new use of the discriminatory act and past
violations with present effects is subtle at best”; nevertheless, “it is a line the Supreme
Court has drawn, and it is our obligation to apply it if at all possible.” Leffman v. Sprint
Corp., 481 F.3d 428 (6th Cir. 2007) (parentheticals omitted). The overarching principle
that can be derived from the direction of these cases on the continuing violation doctrine
is that federal district courts should carefully consider which alleged violations constitute
discrete acts and when they occurred.

MEMORANDUM DECISION AND ORDER - 10

(3)

Equitable Estoppel

If a claimant cannot show that his claim accrued during the statute of limitation
period, he still may file a lawsuit beyond the statute of limitation deadline if he can show
that his statute of limitation should have been tolled (or stopped) for a certain period of
time during the deadline period within which he should have filed the lawsuit. In a civil
rights case such as this, state tolling provisions apply unless important federal policy will
be undermined. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 464-65
(1975).
The Idaho Supreme Court has determined that “[s]tatutes of limitation in Idaho are
not tolled by judicial construction but rather by the expressed language of the statute.”
Wilhelm v. Frampton, 158 P.3d 310, 312 (Idaho 2007). Idaho statutorily tolls the
limitations period for a person’s minority status or insanity. I.C. § 5-230.
The theory of equitable estoppel is also available. While it “does not ‘extend’ a
statute of limitation,” it works in a similar manner to prevent a party who has falsely
represented or concealed a material fact with actual or constructive knowledge of the
truth “from pleading and utilizing the statute of limitations as a bar, although the time
limit of the statute may have already run.” J.R. Simplot Co., v. Chemetics International,
Inc., 887 P.2d 1039, 1041 (Idaho 1994).
Equitable estoppel requires a showing of four elements: “(1) a false representation
or concealment of a material fact with actual or constructive knowledge of the truth; (2)
that the party asserting estoppel did not know or could not discover the truth; (3) that the
MEMORANDUM DECISION AND ORDER - 11

false representation or concealment was made with the intent that it be relied upon; and
(4) that the person to whom the representation was made, or from whom the facts were
concealed, relied and acted upon the representation or concealment to his prejudice.”
Id. at 1041.
B.

Discussion
(1)

Accrual Based on Discovery Rule

The Court has reviewed the facts from several different angles under the federal
“discovery rule,” and yet can find no construction of the facts that would render
Plaintiff’s pre-surgery claims timely. Plaintiff’s 2008 grievance makes it clear that (1) he
himself believed the full extent of his shoulder injury would not appear on an x-ray,
contrary to Defendants’ representations, and (2) he knew that he could file a lawsuit if
Defendants refused to send him to an orthopedic specialist. (Dkt. 20-1, p. 4.) Even if there
were evidence that Defendants intended to mislead him by telling him his x-rays were
“normal” and nothing could be done to solve his shoulder dislocation problems, Plaintiff
was not, in fact, misled, because he was aware that his injury had worsened and that an
orthopedic appointment and other testing could lead to resolution of the problem. Thus,
Plaintiff’s claims accrued on June 19, 2008, when Plaintiff had notice of the refusal of
Defendants to provide any different care for his shoulder problems, and his lawsuit should
have been filed no later than June 19, 2010.
Even under a more liberal construction, assuming that Plaintiff could not have
discovered facts supporting his cause of action in 2008 or 2009, the Court concludes that
MEMORANDUM DECISION AND ORDER - 12

Plaintiff discovered facts necessary to proceed with a lawsuit on March 16, 2010, when
the orthopedic surgeon told him that his shoulder x-ray was not normal and recommended
surgery to correct the dislocation problem. That is, on March 16, 2010, Plaintiff knew that
Defendants had been wrong, and he had two years from that date to file a civil rights
lawsuit that would reach back into time to cover Defendants’ earlier acts.
Permitting Plaintiff to take advantage of tolling during the time it took to exhaust
his administrative remedies, a four-day period from August 22 to August 26, 2010, would
cause the end of the two-year statute of limitations period to be extended from March 16,
2012, to March 20, 2012. Plaintiff filed his lawsuit on June 12, 2012, several months too
late for any claims that accrued as of March 16, 2010.
(2)

Accrual Based on Continuing Tort Theory; Exhaustion of
Administrative Remedies

Another theory that Plaintiff seeks to take advantage of is the continuing violation
doctrine. Plaintiff argues that “he could not have filed suit until after his surgery by Dr.
Gustavel in 2010, because he could not have known the damage caused by the
Defendants when the[y] refused to treat him in a timely manner, until after the results of
the surgery were known.” (Dkt. 20, p. 9.) Plaintiff alleges that Defendants Ms. Niecko
and Dr. Dawson “effectively block[ed] the plaintiff from discovering the true extent of his
injury,” because they told him his x-rays were normal and they refused to let him see a
specialist. (Id., p. 4.) However, as noted above, in 2008, Plaintiff believed that the full
extent of his injury would not appear on an x-ray, and he knew that he could file a lawsuit

MEMORANDUM DECISION AND ORDER - 13

if they refused to send him to an orthopedic specialist. (Dkt. 20-1, p. 4.) He made a clear
demand for adequate treatment and received a clear rejection in the 2008 grievance.
As of 2008, Plaintiff’s claims stood in the same procedural posture as Ricks, Knox,
and Ngo. When a plaintiff receives notice of a governmental decision that will inflict
damage, the cause of action accrues. It does not accrue later, simply because further
injury is suffered. In addition, the extent of a plaintiff’s injury need not be known to
trigger the start of the statute of limitations period. Rather, a plaintiff need know only that
he was damaged and the cause of the damage. See Abramson v. University of Hawaii, 594
F.2d at 209 (“The proper focus is upon the time of the discriminatory acts, not upon the
time at which the consequences of the acts became most painful.”)
After Plaintiff decided he could not live with the shoulder problem and again
began seeking care for his worsened condition from Dr. Dawson in 2009 or 2010, Dr.
Dawson newly referred Plaintiff to physical therapy. After the physical therapist noted a
serious problem with Plaintiff’s shoulder, Plaintiff was referred to an orthopedic specialist
in March 2010. Dr. Dawson’s decision to take new and different action in Plaintiff’s case
is another discrete act. This act was not merely a continuation of prior care, but new care
undertaken separately and anew from Dr. Dawson’s previous determination that nothing
further would be done and no orthopedic consultation would be scheduled.
Even if the Court permitted Plaintiff to use a continuing tort theory to render
timely all of the care that he received from Dr. Dawson from 2004 to March 16, 2010,
when he was made aware of his injury and who caused it, he still did not file his lawsuit
MEMORANDUM DECISION AND ORDER - 14

within the two-year statute of limitations. There was a clear break in any “continuing tort”
allegedly inflicted by Dr. Dawson and Ms. Niecko when Plaintiff was referred to an
orthopedic surgeon.
The surgery, which occurred on June 12, 2010, did not give Plaintiff his first
notice that Defendants had wrongfully told him his shoulder was normal; rather, it simply
corrected the problem and cannot be said to have been the date Plaintiff “discovered” that
Defendants allegedly violated his constitutional rights.
Further, that Dr. Dawson and Ms. Niecko allegedly failed to follow post-operative
orders from Dr. Gustavel and did not properly follow up to see that Plaintiff received
proper physical therapy are also new, discrete acts that occurred after repair of the injury
that was caused by the failure to refer Plaintiff to an orthopedic specialist in 2008. See
Pouncil, 704 F.3d at 578-79 (“Morgan instructs that a court must determine whether a
claim is based on an independently wrongful discrete act, and if it is, then the claim
accrues, and the statute of limitations begins to run, from the date of that discrete act,
even if there was a prior, related past act.”).
Plaintiff further argues that the prison’s rejection of his August 22, 2010 grievance
– based on the reasoning that it was an issue encompassed by the 2008 grievance –
shows that Defendants viewed the medical treatment provided for his shoulder as one
continuous course of treatment, for which he should be able to maintain a lawsuit filed at
this late date. Plaintiff wrote the following in his August 2010 grievance:
From 2004 to 2010 CMS providers knew of and failed to provide me
MEMORANDUM DECISION AND ORDER - 15

with the adequate standard of care in regards to my repeated shoulder
dislocations and ongoing pain. Despite knowing of this problem and prior
medical history, I was refused a referral to an orthopedic specialist. I even
filed a grievance on this issue in 2008 as a consequence of this neglect. I
suffered severe deterioration of my shoulder and needed surgery. Since my
surgery CMS has refused to send me to a first follow-up appointment with
my orthopedic surgeon. Instead opting to take x-rays of their own and
sending them to be read by someone other than my orthopedic surgeon.
(Dkt. 20-1, p. 7.)
On August 26, 2010, the grievance coordinator returned the grievance to Plaintiff,
showing; “As stated in your [2008] grievance[,] that has already been grieved []. Any
further action on this issue needs to be through the legal process.” (Zortman Aff., Dkt. 172, p. 6; Dkt. 20-1, p. 2.)
The Court disagrees with Plaintiff that the 2010 grievance response re-opens the
statute-of-limitations door to sue for the discrete acts that Plaintiff grieved in 2008. The
2010 grievance response merely states that nothing more can be done within the
administrative grievance process. It did not guarantee him the right to pursue a legal
action where such legal action would be blocked by a procedural defect, such as the
statute of limitations.
However, the Court does agree with Plaintiff that, because his 2010 grievance was
rejected as to his notification that CMS had failed to provide a timely after-surgery
orthopedic surgeon follow-up appointment in 2010, the grievance procedures were
effectively unavailable to him, and, thus, he has satisfied 42 U.S.C. §1997(e), the
exhaustion requirement, for claims arising from a failure of Defendants to authorize

MEMORANDUM DECISION AND ORDER - 16

Plaintiff to be taken to a timely follow-up appointment with the orthopedic surgeon. See
Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005).
(3)

Equitable Tolling

Plaintiff alleges that, by the actions set forth above, Dr. Dawson and Ms. Niecko
attempted to conceal his injury, and that their statements were false. He alleges that they
told him the x-rays were normal, and Dr. Gustavel said that the x-rays were not normal.
However, Plaintiff has not demonstrated that the x-rays Defendants viewed were the same
x-rays that Dr. Gustavel viewed. Plaintiff’s own Affidavit showed that his shoulder
condition worsened between 2008 and 2010; thus, x-rays may have revealed a worsened
condition.
Rather, the record shows that Defendants informed Plaintiff that they did not
believe his condition warranted further care. Plaintiff then made a choice to follow a
conservative path of treatment, rather than to file suit to attempt to resolve the problem.
Defendants did not thereafter ignore Plaintiff’s reports that his condition had worsened,
but they referred Plaintiff to another prison doctor, a physical therapist, and then, finally,
an orthopedic specialist. Plaintiff has not brought forward sufficient evidence to show
fraud or intentional concealment on this set of facts. Similarly, nothing in the record
shows that Defendants attempted to dissuade Plaintiff from pursuing legal action in 2008
when he threatened to do so.
Finally, even if Defendants purposely misled Plaintiff so that he would not demand
additional medical care, Plaintiff knew that their representations had been wrong as of
MEMORANDUM DECISION AND ORDER - 17

March 16, 2010, when he saw Dr. Gustavel for the first time. Equity further requires
Plaintiff to act diligently, which he did not, having waited to file his lawsuit until two
years after he had surgery.
Because the most generous application of tolling would extend the statute of
limitations only to March 20, 2012, Plaintiff’s filing of June 12, 2012, was still untimely.
(4)

State Law Claims

Defendants also request dismissal of Plaintiff’s state law claims on statute of
limitations grounds. (Dkt. 17, pp. 1-2.) In Idaho, accrual of a claim for personal injuries is
governed by the following rules:
An action to recover damages for [personal injury or] “professional
malpractice” must be commenced within two years after the cause of action
has accrued. Idaho Code §§ 5-201 & 5-219 (1998). Except for actions based
upon leaving a foreign object in a person’s body or where the fact of
damage has been fraudulently and knowingly concealed, the cause of action
. . . accrues “as of the time of the occurrence, act or omission complained
of,” Idaho Code § 5-219 (1998), although there must also be some damage
for the cause of action to accrue. Griggs v. Nash, 116 Idaho 228, 775 P.2d
120 (1989). The limitation period is not extended by reason of any
continuing consequences or damages resulting from the malpractice or any
continuing professional or commercial relationship between the injured
party and the alleged wrongdoer. Idaho Code § 5-219 (1998).
Lapham v. Stewart, 51 P.3d 396, 399-400 (Idaho 2002).
The extensive analysis above would be the same under this state law standard,
because the latest date Plaintiff discovered any alleged concealment of his condition and
damage was March 16, 2010. As a result, the Court concludes that Plaintiff’s state law
claims are barred, other than the post-surgery claims, because Plaintiff knew of his claims

MEMORANDUM DECISION AND ORDER - 18

as of March 16, 2010, but did not file his lawsuit until June 12, 2012.
C.

Conclusion

Based on the foregoing analysis, Plaintiff has not shown that his claims against
Defendants are timely, with the exception of a failure of Defendants to authorize Plaintiff
to be taken to a timely after-surgery follow-up appointment with the orthopedic surgeon.
Therefore, Plaintiff may proceed only on the latter claims for acts of Defendants that
occurred after June 12, 2010.
3.

Defense of Failure to Complete PLSP Process as to State Law Claims
Defendants argue that, because Plaintiff failed to complete the pre-litigation

screening process before filing his lawsuit, he should be barred from pursuing his claims.
Pursuant to Idaho Code § 6-1001, Plaintiff is required to participate in a prelitigation
screening hearing before an Idaho Board of Medicine panel. The purpose of the panel is
to review the Plaintiff’s evidence and provide the panel’s comments and observations
regarding the merits of the medical malpractice claim. James v. Buck, 727 P.2d 1136,
1137 (1986). The proceedings are “informal and non-binding, but nonetheless
compulsory as a condition precedent to litigation.” I.C. § 6-1001.
The Idaho Supreme Court has determined that filing a proceeding with the
prelitigation screening panel is not a condition precedent to filing a complaint in district
court. Moss v. Bjornson, 765 P.2d 676, 678 (1988). The Moss decision also held that it
was not an abuse of discretion to stay the proceedings in state court until the screening
panel issued its advisory opinion. Id. at 678. The statute provides a stay of thirty days
MEMORANDUM DECISION AND ORDER - 19

after the panel issues its comments and observations. I.C. § 6-1006. The reason for the
stay is to allow the parties time to consider an informal resolution of the medical
malpractice claim before litigation on the claim commences. I.C. § 6-1005.
Therefore, dismissal is not required, and Plaintiff may seek a stay of this action (as
to post-June 12, 2010 claims) if he has not completed the prelitigation screening process.
Defendants are free to raise this defense at a later date if Plaintiff has not now completed
the process, or does not complete the process in a timely manner.
ORDER
IT IS ORDERED:
1.

Defendants’ Motion to Dismiss (Dkt. 17) is GRANTED in part as to
Plaintiff’s claims, with the exception of a claim based on failure of
Defendants to authorize Plaintiff to be taken to a timely post-surgery
follow-up appointment with the orthopedic surgeon. If Plaintiff determines
that he has insufficient or marginal evidence to prove that any injuries or
damages were caused by the delay in scheduling the orthopedic follow-up
appointment (Defendants assert that a follow-up visit was scheduled
eventually), Plaintiff may wish to discuss a stipulated dismissal of his
remaining claims with Defendants on whatever terms the parties can agree.
Plaintiff may proceed on this limited claim only, with the scope of this
action (including discovery), limited to that topic and time period.

MEMORANDUM DECISION AND ORDER - 20

2.

Disclosure of Relevant Information and Documents: If the parties have
not already done so, no later than 30 days after entry of this Order, the
parties shall provide each other with relevant information and documents
pertaining to the claims and defenses in this case, including the names of
individuals likely to have discoverable information, along with the subject
of the information, as well as any relevant documents in their possession, in
a redacted form if necessary for security or privilege purposes; and, if
necessary, they shall provide a security/privilege log sufficiently describing
any undisclosed relevant documents which are alleged to be subject to
nondisclosure. Any party may request that the Court conduct an in camera
review of withheld documents or information. In camera documents are to
be filed ex parte under seal, and not provided by email or mail.

3.

Service. All un-served Defendants must be served no later than 60 days
after entry of this Order, or claims against them will be dismissed.

4.

Amendment of Complaint. Any proposed amended complaints, with
accompanying motions, must be filed no later than 90 days after entry of
this Order.

5.

Completion of Discovery and Requests for Subpoenas: All discovery
shall be completed no later than 180 days after entry of this Order.
Discovery requests must be made far enough in advance to allow
completion of the discovery in accordance with the applicable federal rules

MEMORANDUM DECISION AND ORDER - 21

prior to this discovery cut-off date. Discovery is exchanged between
parties, not filed with the Court. The Court is not involved in discovery
unless the parties are unable to work out their differences between
themselves as to whether the discovery responses are appropriate. In
addition, all requests for subpoenas duces tecum (pretrial production of
documents by nonparties) must be made within 150 days afer entry of this
Order. No requests for subpoenas duces tecum will be entertained after that
date. (Subpoena requests for trial appearances of witnesses shall not be filed
until the case is se for trial.) To obtain a subpoena duces tecum for
production of documents by nonparties, Plaintiff must first submit to the
Court the names, addresses, and the type of information sought from each
person or entity to be subpoenaed, and Plaintiff must explain the relevance
of the items requested to the claims. The Court will then determine whether
the subpoenas should issue.
6.

Depositions: Depositions, if any, shall be completed no later than 150 days
after entry of this Order. If Defendants wish to take the deposition of
Plaintiff or other witnesses who are incarcerated, leave to do so is hereby
granted. Any such depositions shall be preceded by 10 days’ written notice
to all parties and deponents. The parties and counsel shall be professional
and courteous to one another during the depositions. The court reporter,
who is not a representative of Defendants, will be present to record all of

MEMORANDUM DECISION AND ORDER - 22

the words spoken by Plaintiff (or other deponent), counsel, and any other
persons at the deposition. If Plaintiff (or another deponent) wishes to ensure
that the court reporter did not make mistakes in transcribing the deposition
into a written form, then Plaintiff can request the opportunity to read and
sign the deposition, noting any discrepancies between what is transcribed
and what Plaintiff believes was said. If Plaintiff wishes to take depositions,
Plaintiff must file a motion requesting permission to do so, specifically
showing the ability to comply with the applicable Federal Rules of Civil
Procedure by providing the names of the proposed persons to be deposed,
the name and address of the court reporter who will take the deposition, the
estimated cost for the court reporter’s time and the recording, and the
source of funds for payment of the cost.
7.

Dispositive Motions: All motions for summary judgment and other
potentially dispositive motions shall be filed with accompanying briefs no
later than 210 days after entry of this Order. Responsive briefs to such
motions shall be filed within 30 days after service of motions. Reply briefs,
if any, shall be filed within 14 days after service of responses. All motions,
responses, and replies shall conform to Rule 7.1 of the Local Rules for the
District of Idaho. Neither party shall file supplemental responses,
replies, affidavits, or other filings not authorized by the Local Rules
without prior leave of Court. No motion or memorandum, typed or

MEMORANDUM DECISION AND ORDER - 23

handwritten, shall exceed 20 pages in length.
8.

Alternative Dispute Resolution (ADR). Should Plaintiff and any
Defendant wish to attend a settlement conference, they should file a
stipulation to attend settlement conference, and the case shall then be
referred to the Court’s ADR Director.
DATED: March 4, 2014

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 24