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June 2, 2003


The opinion of the court was delivered by: Thelton E. Henderson, United States District Judge


Funtanilla filed this pro se civil rights action under 42 U.S.C. § 1983 in which he alleged that members of the Pelican Bay State Prison staff acted with deliberate indifference to his serious medical needs. Defendants have filed a motion for summary judgment on the ground that the complaint is barred by the statute of limitations. Funtanilla has filed an opposition, and defendants have filed a reply. The court also now considers Funtanilla's motion to amend his complaint to add a new defendant and defendants' motion to correct clerical errors.


In his amended complaint, Funtanilla alleged that defendants were deliberately indifferent to his serious medical needs while he was incarcerated at Pelican Bay State Prison. The following facts are undisputed unless otherwise noted:

The events giving rise to this action occurred on October 4 and 5, 1996.

The complaint was stamped "filed" at this court on December 29, 1999. The signature on the complaint was dated December 17, 1999 and the envelope it came to the court in was postmarked December 21, 1999.

Funtanilla was in custody at the California State Prison, Corcoran, at the time defendants' motion for summary judgment was filed. The chief psychiatrist at that prison, Dr. Richard Berkson, reviewed Funtanilla's psychiatric records. He also declared that he personally examined Funtanilla on four occasions, but Funtanilla disputes that he was examined by Dr. Berkson. Dr. Berkson declared that "[t]here is some evidence in the records that Mr. Funtanilla suffers from an a typical form of depression, however, that condition has never left him incapacitated. [¶] I find no evidence, either in the records or through my own examinations, that Mr. Funtanilla has ever suffered from insanity." Berkson Decl., ¶¶ 3-4.

Funtanilla has filed numerous civil actions in federal court. Among the actions he filed in the U.S. District Court for the Northern District of California are Funtanilla v. Cambra, No. C 96-3532, Funtanilla v. Duke, No. C 96-4236, Funtanilla v. Duke-Bray, No. 98-3779, Funtanilla v. Kalvelage, No. C 98-3818, and the present action. Among the actions Funtanilla filed in the U.S. District Court for the Eastern District of California are Funtanilla v. Key, No. 97 CV 5682, Funtanilla v. Schwenke, No. 98 CV 492, Funtanilla v. Kalvelage, No. 98 CV 995, Funtanilla v. Duke-Bray, 98 CV 1708, Funtanilla v. Kalvelage, No. 98 CV 1903, Funtanilla v. Luks, 98 CV 5770, Funtanilla v. Galaza, No. 98 CV 6118, Funtanilla v. Ninevela, No. 98 CV 6365, and Funtanilla v. Kelly, No 99 CV 2521. Both courts use a numbering system in which the first two digits of the case number reflect the year in which the case was filed; thus, a case beginning with "96" was filed in 1996. The listing of cases shows that Funtanilla was filing civil actions in federal court in 1996, 1997, 1998 and 1999.


A. Funtanilla's Request To Postpone Consideration Of Summary Judgment Motion
In his opposition to defendants' motion for summary judgment, Funtanilla requests the court to postpone consideration of defendants' motion under Federal Rule of Civil Procedure 56(f) because he was not been able to obtain certain documents. The court denies the request for the following reasons.

First, defendants do not have the records Funtanilla claims they are withholding and Funtanilla knows it. Funtanilla sought production from defendants of "All California Department of Corrections documents that show Funtanilla's admissions to prison hospitals including but not limited to his mental health file documents between October 1996 and December 1999 at Pelican Bay State Prison, Corcoran State Prison and California State Prison — Sacramento County IV." Opposition To Motion For Summary Judgment, Exh. B. Defendants (a nurse and two correctional officers at Pelican Bay) do not maintain Funtanilla's prison file. Defendants responded to Funtanilla on November 21, 2002 that his mental health records were accessible to him at Corcoran, where he was then housed.*fn1 It is not defendants' fault that Funtanilla does not have his mental health records. Moreover, Funtanilla's opposition brief was filed almost six months ago and he has not provided any more evidence since then (although he has filed other documents in this action), indicating a lack of diligence by him in obtaining and presenting the materials to this court.

Second, Funtanilla's representation that he does not have mental health records is dubious in light of the fact that he later submitted a document that contradicted his assertion. Attached to his motion to amend filed March 20, 2003, is a receipt for medical records he signed that indicates he received on February 20, 2002, among other things "acute care records for 1996 including psychiatric records." Motion To Amend, Exh. A.

Third, the records Funtanilla describes will not ward off summary judgment. Funtanilla wants to obtain records that he thinks will show that on intermittent occasions in 1996 through 1999 he was incapacitated by mental illness or treatment therefor for up to five days at a time. As discussed in more detail in the following section of this order, proving intermittent incapacitation will not help him. Funtanilla must raise a triable issue of fact as to continuous incapacitation for at least the eleven weeks following the incident on October 4, 1996, or the eleven weeks following October 4, 1998 or maybe the eleven weeks before the complaint was filed on December 21, 1999.*fn2 He does not claim that he can do so, even if he has all the records in his file.

Finally, because of Funtanilla's litigiousness, this court and the Eastern District of California have many, many filings from Funtanilla during the relevant time periods. These filings rebut any notion that Funtanilla was incapable of caring for his property or transacting business, or understanding the nature or effects of his acts during the relevant time periods. The following filings illustrate that Funtanilla was busily litigating pro se just before the incident that gave rise to this action and for ...

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