Garrett Deetz v. Charles Ryan

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 11, 2020
• Docket: 20-15015
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GARRETT J. DEETZ, No. 20-15015

Plaintiff-Appellant, D.C. No. 2:19-cv-00966-DJH

v. MEMORANDUM* CHARLES L. RYAN, Former director of the Arizona department of corrections, individually; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding

Submitted December 9, 2020** San Francisco, California

Before: BOGGS,*** M. SMITH, and BENNETT, Circuit Judges.

Garrett Deetz appeals the district court’s order granting summary judgment to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Defendants Corizon Health, Inc. and various officials within the Arizona

Department of Corrections on Deetz’s 42 U.S.C. § 1983 claim alleging violation of

the Eighth Amendment. We affirm.

Because the parties are familiar with the facts, we do not recount them here,

except where necessary to provide context. We review a grant of summary judgment

de novo. L.F. v. Lake Wash. Sch. Dist. #414, 947 F.3d 621, 625 (9th Cir. 2020).

Deetz’s claims arise out of his diagnosis with hepatitis C while incarcerated

between 2008 and 2016. He claims that prison officials denied him accurate

information about—and treatment for—his hepatitis infections, forming the basis of

an Eighth Amendment deliberate-indifference claim. Deetz filed his complaint on

February 12, 2019. Applying the continuing-violation doctrine, the district court

held that Deetz’s claim accrued on December 8, 2016, the date he was released from

incarceration. The district court therefore dismissed the complaint as outside the

two-year statute of limitations for claims under 42 U.S.C. § 1983.

As the district court recognized, the Ninth Circuit has not adopted the

continuing-violation doctrine in the context of Eighth Amendment medical-care

claims under § 1983, though other circuits and many district courts in our circuit

have. See Herrington v. Bristol, No. 2:16-cv-00680-AC, 2019 WL 7598855, at *15

(D. Or. July 29, 2019) (collecting cases). But, as the district court further noted, the

continuing violation doctrine would extend accrual of Deetz’s claim only until his

2 release.

To extend the accrual of Deetz’s claim beyond the date of his release, to the

date on which he received medical advice on his conditions from a doctor outside

the correctional facility, Deetz argues that he should also benefit from the discovery

rule or the fraudulent-concealment doctrine. But Deetz’s invocations of the

discovery rule and the fraudulent-concealment doctrine fail because his complaint

does not provide any facts sufficient to conclude that he could not have discovered

the basis of his claim before February 2017 or that Defendants concealed this

information from him. See Lyons v. Michael & Associates, 824 F.3d 1169, 1171

(9th Cir. 2016). Therefore, “even assuming that the continuing-violation doctrine

applies, [Plaintiff] does not allege sufficient facts within the statute of limitation to

satisfy this doctrine.” Chestra v. Davis, 747 F. App’x 626, 627 (9th Cir. Jan. 10,

2019).

AFFIRMED