Aron Miron v. Dr. Lewis

• Court: District Court, C.D. California
• Decided: January 11, 2024
• Docket: 5:23-cv-01682
• Status: Unknown

Opinion

1 2 3

7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 ARON MIRON, ) Case No. EDCV 23-01682-PA (DTB) ) 12 ) Plaintiff, ) 13 ) ) ORDER TO SHOW CAUSE WHY 14 v. ) THIS ACTION SHOULD NOT BE ) 15 ) DISMISSED AS TIME-BARRED DR. LEWIS, ) 16 ) ) 17 Defendant.

18 I. 19 INTRODUCTION 20 On March 30, 2023, plaintiff Aron Miron, while in state custody and 21 22 requesting to proceed in forma pauperis, filed a “Complaint by a Prisoner Under 23 the Civil Rights Act, 42 U.S.C. § 1983” in the Northern District. (Docket No. 1.) 24 On August 11, 2023, the Northern District transferred the matter to this Court’s 25 calendar. (Docket No. 4.) On August 28, 2023, the previously assigned 26 Magistrate Judge issued an Order Regarding Complaint (Docket No. 7) advising 27 plaintiff that the Complaint was deficient on several grounds, including that it 28 failed to state a proper claim under Section 1983 (Id. at 4-5). In its Order, the 1 Court also alerted plaintiff to the fact that the claims in the Complaint appeared to 2 be untimely under the operative statute of limitations but made no finding thereon. 3 (Id. at 4-7.) Plaintiff was provided an opportunity to cure the deficiencies in the 4 Complaint and, after one extension of time, filed a First Amended Complaint 5 (“FAC”) (Docket No. 10) on October 27, 2023 pursuant to 42 U.S.C. § 1983 6 (“Section 1983”). The FAC asserts claims similar to those raised in the Complaint, 7 and names a single defendant, “Dr. Lewis,” in both his individual and official 8 capacities.1 The FAC alleges that Dr. Lewis rendered negligent medical treatment 9 on three discrete occasions while plaintiff was incarcerated at Ironwood State 10 Prison.2 The Court has now screened the FAC pursuant to 28 U.S.C. § 1915 (e)(2). 11 As plaintiff seeks to proceed in forma pauperis, under 28 U.S.C. § 1915 (e)(2), the 12 Court must dismiss the FAC if it is frivolous or malicious, fails to state a claim on 13 which relief may be granted, or seeks monetary relief from a defendant who is 14 immune from such relief. For the reasons explained below, the FAC is subject to 15 dismissal. 16 II. 17 STANDARD OF REVIEW 18 A complaint may be dismissed for failure to state a claim for two reasons: 19 (1) Lack of a cognizable legal theory; or (2) insufficient facts under a cognizable 20 legal theory. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th 21 Cir. 2008). Pleadings by pro se plaintiffs are reviewed liberally and afforded the 22 benefit of the doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see 23

24 1 In its August 28, 2023 Order, the Court found that the Complaint was deficient on multiple grounds, 25 including that the Complaint named Dr. Lewis in his official capacity (Complaint at 5-6). Plaintiff was ordered to remedy the deficiencies in the event he chose to file a First Amended Complaint. However, in spite of the Court’s 26 admonition, plaintiff’s FAC alleges claims against Dr. Lewis in both his individual and official capacities. Notwithstanding the time-bar issue based on the apparent expiration of the statute of limitations regarding the claims 27 raised in the FAC, as addressed herein, the FAC is also subject to dismissal on the grounds previously raised by the Court regarding Dr. Lewis being named in his official capacity. 2 It appears to the Court that plaintiff is no longer in state custody. See plaintiff’s change of address. (FAC 28 at 10.) 1 also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (as amended). However, “a 2 liberal interpretation of a civil rights complaint may not supply essential elements 3 of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 4 F.3d 1251, 1257 (9th Cir. 1997) (citation omitted). “[T]he tenet that a court must 5 accept as true all of the allegations contained in a complaint is inapplicable to legal 6 conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 7 In assessing whether a complaint states a viable claim, the Court applies the 8 same standard as it would when evaluating a motion to dismiss under Federal Rule 9 of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). See Rosati v. Igbinoso, 791 F.3d 10 1037, 1039 (9th Cir. 2015) (per curiam). Rule 12(b)(6), in turn, is read in 11 conjunction with Rule 8(a) of the Federal Rules of Civil Procedure (“Rule 8”). 12 Zixiang Li v. Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013). Under Rule 8, a 13 complaint must contain a “short and plain statement of the claim showing that the 14 pleader is entitled to relief.” Rule 8(a)(2). Though Rule 8 does not require 15 detailed factual allegations, at a minimum, a complaint must allege enough specific 16 facts to provide both “fair notice” of the particular claim being asserted and “the 17 grounds upon which [that claim] rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 18 544, 555 & n.3 (2007) (citation omitted); see also Iqbal, 556 U.S. at 678 (observing 19 that Rule 8 standard “demands more than an unadorned, the-defendant-unlawfully- 20 harmed-me accusation”); Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 199 (9th Cir. 21 1995) (finding that even pro se pleadings “must meet some minimum threshold in 22 providing a defendant with notice of what it is that it allegedly did wrong”); 23 Schmidt v. Herrmann, 614 F.2d 1221, 1224 (9th Cir. 1980) (upholding Rule 8 24 25 dismissal of “confusing, distracting, ambiguous, and unintelligible pleadings”). 26 Thus, to survive screening, “a complaint must contain sufficient factual 27 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 28 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is “plausible” 1 when the facts alleged support a reasonable inference that the plaintiff is entitled to 2 relief from a specific defendant for specific misconduct. Id. Allegations that are 3 “merely consistent with” a defendant’s liability or reflect only “the mere possibility 4 of misconduct” do not show “that the pleader is entitled to relief,” and thus are 5 insufficient to state a claim that is “plausible on its face.” Id. at 678-79 (citations 6 omitted). “Taken together, Iqbal and Twombly require well-pleaded facts, not 7 legal conclusions that ‘plausibly give rise to an entitlement to relief.’ The 8 plausibility of a pleading thus derives from its well-pleaded factual allegations.” 9 Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1176 (9th Cir. 2021) (citations 10 omitted). 11 If the Court finds that a complaint should be dismissed for failure to state a 12 claim, the Court has discretion to dismiss with or without leave to amend. See 13 Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc). Leave to 14 amend should be granted if it appears possible that the defects in the complaint 15 could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see also Cato 16 v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that “[a] pro se litigant 17 must be given leave to amend his or her complaint, and some notice of its 18 deficiencies, unless it is absolutely clear that the deficiencies of the complaint 19 could not be cured by amendment”). However, if, after careful consideration, it is 20 clear that a complaint cannot be cured by amendment, the Court may dismiss 21 without leave to amend. See, e.g., Chaset v. Fleer/Skybox Int’l., 300 F.3d 1083, 22 1088 (9th Cir. 2002) (holding that “there is no need to prolong the litigation by 23 permitting further amendment” where the “basic flaw” in the pleading cannot be 24 25 cured by amendment). 26 For purposes of evaluating whether a complaint fails to state a claim, a court 27 may consider whether claims are time-barred. The expiration of the statute of 28 limitations may be grounds for a court to dismiss a complaint, sua sponte, at the 1 screening stage on the grounds that it fails to state a claim when “the running of the 2 statute of limitations is apparent on the face of the complaint.” (Von Saher v. 3 Norton Simon Museum of Art at Pasadena, 592 F.3d 594, 596 (9th Cir. 2010) 4 (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006) 5 (internal quotations omitted). Belanus v. Clark, 796 F.3d 1021, 1024-25 (9th Cir. 6 2015) (affirming dismissal of pro se complaint upon screening pursuant to 28 U.S.C. § 7 1915A, in part, because prisoner’s complaint, on its face, appeared to be untimely and 8 barred by the applicable statute of limitations); Franklin v. Murphy, 745 F.2d 1221, 9 1229 (9th Cir. 1984) (“An action may be dismissed under [IFP statute] where the 10 defense is complete and obvious from the face of the pleadings or the court’s own 11 records.”). A claim may be dismissed as time-barred only when “it appears beyond 12 doubt that the plaintiff can prove no set of facts that would establish the timeliness 13 of the claim” (Von Saher, 592 F.3d at 969, quoting Supermail Cargo, Inc. v. U.S., 14 68 F.3d 1204, 1206 (9th Cir. 1995). 15 III. 16 DISCUSSION 17 A. The FAC Appears to be Time-Barred and, Therefore, Subject to 18 Dismissal. 19 20 The claims raised by plaintiff in the FAC appear to be barred by the 21 applicable statute of limitations, i.e., the deadline for filing a lawsuit, as they are 22 alleged to have occurred approximately 13 years prior to the date upon which 23 plaintiff filed the instant action. The applicable statute of limitations for actions 24 brought pursuant to Section 1983 is the forum state’s statute of limitations for 25 personal injury actions. Bird v. Dep’t of Human Servs., 935 F.3d 738, 743 (9th 26 Cir. 2019) (per curiam) (citation omitted); Mills v. City of Covina, 921 F.3d 1161, 27 1166 (9th Cir. 2019). “In California, personal injury claims that accrued after 28 1 January 1, 2003, are subject to a two-year statute of limitations.” Colony Cove 2 Props., LLC v. City of Carson, 640 F.3d 948, 956 (9th Cir. 2011); Cal. Civ. Proc. 3 Code § 335.1; Jackson v. Barnes, 749 F.3d 755, 761 (9th Cir. 2014). Federal law 4 determines when a cause of action accrues and the statute of limitations period 5 begins to run. McDonough v. Smith, 588 U.S. ___, 139 S.Ct. 2149, 2155, 204 6 L.Ed.2d 506 (2019); Wallace v. Kato, 549 U.S. 384, 387 (2007). Pursuant to 7 federal law, “‘a claim accrues when the plaintiff knows or has reason to know of 8 the injury that forms the basis of his cause of action.’” Soto v. Sweetman, 882 9 F.3d 865, 870 (9th Cir. 2018) quoting Lukovsky v. City of San Francisco, 535 F.3d 10 1044, 1048 (9th Cir. 2008); Bird, 935 F.3d at 743. 11 Here, as noted above, the incidents alleged in the FAC occurred over several 12 months in late 2009 and early 2010. (FAC at 3, 5-8.) Specifically, the FAC 13 appears to allege three discrete claims of deliberate medical indifference against 14 Dr. Lewis: (1) A procedure to remove plaintiff’s gallbladder, which occurred on or 15 about September 8, 2009 (FAC at 3, 5); (2) Dr. Lewis’ decision to halt plaintiff’s 16 chemotherapy treatment for cancer on or about November 8, 2009 (FAC at 3, 6)3; 17 and (3) a spinal surgery on March 8 and 9, 2010 (FAC at 3, 7). Thus, from the face 18 of the FAC, plaintiff’s claims appear to have accrued as of March 9, 2010, when 19 the last incident of alleged deficient medical care occurred. The FAC is silent as to 20 any date or dates upon which plaintiff discovered or otherwise knew, or had reason 21 to know, of his alleged deficient medical care and deliberate indifference claims 22 against Dr. Lewis. Though the FAC asserts that plaintiff completed his 23 administrative grievance procedure pertaining to his claims (FAC at 2), he failed to 24 25 attach any grievance documentation to the FAC. Such documentation would 26 27 3 As the FAC includes multiple pages entitled “page 5 of 6,” the Court references the page numbering from 28 the Court’s Electronic Filing System. 1 presumably shed further light on the timeline of plaintiff’s discovery of his claims 2 against defendant Lewis.4 3 Since plaintiff was in custody at the time the underlying events occurred, he 4 is also entitled to a period of tolling of the appliable limitations period. A federal 5 court also borrows California’s statutory and equitable tolling rules to calculate the 6 limitations period, to the extent they are not inconsistent with federal law. See Azer 7 v. Connell, 306 F.3d 930, 936 (9th Cir. 2002); Jones v. Blanas, 393 F.3d 918, 927-28 8 (9th Cir. 2004). Among other statutory provisions, California applies up to two 9 years of tolling for a plaintiff imprisoned for less than a life term. Cal. Civ. Proc. 10 Code § 352.1(a) (“If a person entitled to bring an action . . . is, at the time the 11 cause of action accrued, imprisoned on a criminal charge, or in execution under 12 the sentence of a criminal court for a term less than for life, the time of that 13 disability is not a part of the time limited for the commencement of the action, not 14 to exceed two years.”); Brown v. County of Los Angeles, 830 F.App’x. 231, 232 15 (9th Cir. 2020) (only prisoners serving sentences less than life without the 16 possibility of parole are entitled to tolling under section 352.1). Thus, it appears 17 plaintiff is entitled to the two-year tolling period, in addition to the limitations 18 period of two years, since he was imprisoned on a term less than for life at the time 19 the events alleged in the FAC occurred. 20 California law also provides for the tolling of a statute of limitations based 21 on mental incapacity. Cal. Civ. Proc. Code § 352(a) (“If a person entitled to bring 22 an action, mentioned in Chapter 3 (commencing with Section 335) is, at the time 23 the cause of action accrued either under the age of majority or lacking the legal 24 25 capacity to make decisions, the time of the disability is not party of the time limited for 26 27 4 Pursuant to the Prison Litigation Reform Act of 1985 (“PLRA”), prisoners are required to exhaust any institutional administrative (grievance) procedures before filing suit. 28 U.S.C. § 1915A. However, exhaustion of a grievance process is an affirmative defense, and need not be specifically pled by a prisoner in a civil rights 28 complaint. Jones v. Bock, 549 U.S. 199, 216 (2007). 1 the commencement of the action.”). Here, there is nothing in the FAC to suggest that 2 plaintiff qualifies for any mental incapacity tolling under section 352. 3 Accordingly, assuming plaintiff qualifies for two years of tolling under section 4 352.1, he would have had four years in which to bring his lawsuit, which means he 5 would have had to file his action no later than March 9, 2014, or four years from the 6 date upon which he discovered his claims. As the instant action was filed in 2023, it 7 appears to be untimely by approximately nine years, absent a basis for equitable 8 tolling. 9 California provides for equitable tolling in limited circumstances when the 10 plaintiff satisfies the following three conditions: “(1) [D]efendant must have had 11 timely notice of the claim; (2) defendant must not be prejudiced by being required to 12 defend the otherwise barred claim; and (3) plaintiff’s conduct must have been 13 reasonable and in good faith.” Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999) 14 (internal quotation and citation omitted); see also Jones, 393 F.3d at 928 (“Equitable 15 tolling under California law ‘operates independently of the literal wording of the Code 16 of Civil Procedure to suspend or extend a statute of limitations as necessary to ensure 17 fundamental practicality and fairness.’”) (quoting Lantzy v. Centex Homes, 31 Cal.4th 18 363, 370 (2003)). Relatedly, as exhaustion of remedies is mandated by the PLRA 19 prior to an inmate bringing a Section 1983 lawsuit, tolling also generally occurs for the 20 period when an inmate pursues mandatory exhaustion of administrative remedies. See 21 Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (“[T]he applicable statute of 22 limitations must be tolled while a prisoner completes the mandatory exhaustion 23 process.”). See also Soto, 882 F.3d at 870-71. 24 25 Here, the FAC provides no basis from which the Court could construe a period 26 of equitable tolling sufficient to overcome the time bar. Plaintiff supplies no 27 allegations or facts from which the Court could infer that he has pursued his claims 28 reasonably, nor is it alleged that defendant Lewis was given timely notice of the 1 claims. As noted, while plaintiff asserts in the FAC that he has exhausted his 2 administrative remedies regarding his claims, he has provided no information 3 regarding the grievance process and did not attach any grievance documents to the 4 FAC. Without any basis for a substantial period of equitable tolling, the FAC is 5 untimely, as it appears that plaintiff failed to bring his claims concerning 6 defendant’s alleged conduct until March 2023, when he filed this action – 7 approximately nine years after the last incident of alleged constitutional injury. 8 Before dismissing time-barred claims, however, a plaintiff must first be given an 9 opportunity to address equitable tolling. See Givens v. City & County of San 10 Francisco, 269 F.App’x. 685, 685-86 (9th Cir. 2008) (vacating and remanding district 11 court’s dismissal of complaint on initial screening pursuant to 28 U.S.C. § 1915A, 12 without leave to amend, because plaintiff had not been afforded opportunity to address 13 equitable tolling) (citing Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th 14 Cir. 1993) (noting dismissal on statute of limitations grounds is disfavored where 15 matters outside the complaint are not considered and where equitable tolling may 16 apply)). 17 Accordingly, IT IS ORDERED that plaintiff shall show good cause in 18 writing, no later than February 11, 2024, as to why this action should not be 19 dismissed as time barred. Plaintiff’s response should address whether he 20 properly qualifies for any basis for tolling the statute of limitations including any 21 basis for equitable tolling, or other grounds sufficient to overcome the applicable 22 statute of limitations. Alternatively, if plaintiff does not wish to proceed with this 23 federal action, he may instead date, sign and return the attached dismissal notice 24 25 by the foregoing deadline. 26 / / / 27 / / / 28 / / / 1 Plaintiff is cautioned that the failure to comply with this Order to Show 2 ||Cause and/or to show good cause may result in the dismissal of this action as time- 3 || barred, for lack of prosecution and/or for failure to comply with a Court Order. 4 IT IS SO ORDERED.? 5 . DATED: January 11, 2024 6 DAVID T. BRISTOW 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 oo... .0—0—0_—0,—>Ma 90909090900 The Court’s order herein constitutes a non-dispositive ruling on a pretrial matter. To the extent a party 5 disagrees with such non-dispositive ruling, such party may file a motion for review by the assigned District Judge 26 within fourteen (14) days. See Local Rule 72-2.1. To the extent a party believes the ruling to be dispositive, rather than non-dispositive, such party has the right to object to this Court’s determination that the ruling is non- 27 dispositive within fourteen (14) days. A party will be foreclosed from challenging the ruling herein if such party 28 does not seek review thereof, or object thereto. 10