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FUNTANILLA v. RUBLES

United States District Court, Northern District of California


June 2, 2003

GREGORIO FUNTANILLA, PLAINTIFF,
v.
C. RUBLES; ET AL.; DEFENDANTS.

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

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT, DENYING v. MOTION TO AMEND AND DENYING MOTION TO CORRECT TYPOGRAPHICAL ERRORS
INTRODUCTION

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.

BACKGROUND

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.

DISCUSSION

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 the eleven weeks after the incident. In the eleven weeks following the October 4, 1996 incident, Funtanilla filed these documents:

Date of Document filed by Funtanilla (Case name and number) Filing

10/4/96 Objections by Funtanilla to report and recommendation (Funtanilla v. Johnson, E.D. Cal. No. 95 CV 1397).
10/18/96 Motion for injunctive relief by Funtanilla (Funtanilla v. Schneider, E. D. Cal. No. 92 CV 1975).
10/28/96 Ex parte motion by Funtanilla for court order (Funtanilla v. Erwin, E D. Cal. 93 CV 1155).
11/6/96 Motion for injunctive relief order by Funtanilla, with supporting declaration from Funtanilla (Funtanilla v. Schneider, E.D. Cal. No. 92 CV 1975).
11/12/96 Ex parte application by Funtanilla for continuance of trial date (Funtanilla v. Schneider, E. D. Cal. No. 92 CV 1975).
11/15/96 Motion for extension of time to file opposition to motion for partial summary judgment by Funtanilla (Funtanilla v. Schneider, E. D. Cal. No. 92 CV 1975).
11/22/96 Complaint and in forma pauperis application (Funtanilla v. Duke, N. D. Cal. No. C 96-4236)
11/22/96 Motion by Funtanilla for extension of time (Funtanilla v. Johnson, E.D. Cal. No. 95 CV 1397).
11/25/96 Notice of filing amended proof of service by Funtanilla (Funtanilla v. Johnson, E.D. Cal. No. 95 CV 1397).
11/25/96 Request by Funtanilla to withdraw motion (Funtanilla v. Schneider, E. D. Cal. No. 92 CV 1975).
11/27/96 Reply by Funtanilla to motion for injunctive relief order (Funtanilla v. Schneider, E. D. Cal. No. 92 CV 1975).
11/27/96 Application by petitioner to file traverse in support of habeas petition (Funtanilla v. Cambra, N. D. Cal. No. C 96-3532).
12/3/96 Request by Funtanilla for extension of time (Funtanilla v. Johnson, E.D. Cal. No. 95 CV 1397).
12/9/96 Application by petitioner to file a traverse (Funtanilla v. Cambra, N. D. Cal. No. C 96-3532)
12/11/96 Request by Funtanilla for a stay of the court order (Funtanilla v. Erwin, E D. Cal. 93 CV 1155).
12/11/96 Motion for reconsideration of the court's order by Funtanilla (Funtanilla v. Erwin, E D. Cal. 93 CV 1155).
12/12/96 Letter from Funtanilla regarding IFP application (Funtanilla v. Duke, N. D. Cal. No. C 96-4236).
12/19/96 Motion for leave to file response; response by Funtanilla to defendant's response to court's request for documents and address disclosure (Funtanilla v. Schneider, E. D. Cal. No. 92 CV 1975).
There were plenty more court filings by Funtanilla between January 1997 and October 1999, but only those falling in the eleven weeks after October 4, 1998 (when the tolling for the disability of imprisonment ended) are recounted here:

Date of Document filed by Funtanilla (Case name and number) Filing

10/5/98 Complaint and in forma pauperis application filed by plaintiff (Funtanilla v. Galaza, E. D. Cal. No. 98 CV 6118).
10/5/98 Opposition by plaintiff to request for enlargement of time to reply (Funtanilla v. Johnson, E. D. Cal. No. 95 CV 1397).
10/19/98 Letter from plaintiff (Funtanilla v. Kalvelage, N. D. Cal. No. C 98-3818).
10/19/98 Objection to findings and recommendation by plaintiff (Funtanilla v. Erwin, E. D. Cal. No. 93 CV 1155).
10/28/98 Application to proceed in forma pauperis (Funtanilla v. Luks, E. D. Cal. No. 98-5770).
10/29/98 Request by plaintiff for sanctions (Funtanilla v. Johnson, E. D. Cal. No. 95 CV 1397).
11/5/98 Motion for sanctions by plaintiff re. defendant's motion for summary judgment (Funtanilla v. Johnson, E. D. Cal. No. 95 CV 1397)
11/9/98 In forma pauperis affidavit by plaintiff (Funtanilla v. Duke-Bray, N. D. Cal. No. C 98-3779).
11/10/98 Amended complaint by plaintiff (Funtanilla v. Kalvelage, E. D. Cal. No. 98 CV 1903).
11/13/98 Supplemental complaint by plaintiff (Funtanilla v. Key, E. D. Cal. No. 97 CV 5682).
11/23/98 Request by plaintiff for notice of submission of documents (Funtanilla v. Kalvelage, E. D. Cal. No. 98 CV 1903).
11/23/98 Complaint and in forma pauperis application filed (Funtanilla v. Ninevela, E. D. Cal. No. 98 CV 6365).
11/30/98 Notice of appeal by plaintiff (Kalvelage v. Erwin, E. D. Cal. No. 93 CV 1155).
12/14/98 Motion for reconsideration by plaintiff (Funtanilla v. Key, E. D. Cal. No. 97 CV 5682).
12/16/98 Motion/declaration for extension of time to file objections to magistrate judge's findings and recommendations by plaintiff (Funtanilla v. Key, E. D. Cal. No. 97 CV 5682).
1/4/99 Motion to withdraw pleadings (Funtanilla v. Key, E. D. Cal. No. 97 CV 5682).
Finally, Funtanilla filed more court documents in the eleven weeks before he filed the present action, as illustrated by the list below:

Date of Document filed by Funtanilla (Case name and number) Filing

10/13/99 Status report by Funtanilla (Funtanilla v. Kalvelage, E D. Cal. No. 98 CV 1903).
11/15/99 Motion for reconsideration of court's order (Funtanilla v. Kalvelage, N. D. Cal. No. C 98-3818).
11/29/99 Amended complaint (Funtanilla v. Schwenke, E D. Cal. No. 98 CV 492).
12/1/99 Motion to compel discovery (Funtanilla v. Kalvelage, E D. Cal. No 98 CV 1903).
12/22/99 Complaint (Funtanilla v. Kelly, E. D. Cal. No. 99 CV 2521).
This kind of litigation activity is wholly incompatible with the notion that Funtanilla suffered "insanity" that would toll the limitations period. A lot of the filings by Funtanilla were responsive to court orders and to motions filed by his opponents, reflecting a good comprehension of how to conduct a court case. His litigation activity shows that he was able to conduct his affairs in the relevant time periods. Even if Funtanilla could obtain records that showed he was intermittently incapacitated during the three years and eleven weeks between the incident and the filing of the complaint, he could not defeat the motion for summary judgment. Accordingly, the court denies Funtanilla's request to postpone consideration of the summary judgment motion while he tries to obtain his mental health records. The court now turns to the merits of the summary judgment motion.

B. Motion For Summary Judgment

1. Standard of Review

Defendants have moved for summary judgment on the affirmative defense of failure to comply with the statute of limitations. Where, as here, the moving party bears the burden of proof at trial, he must come forward with evidence which would entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. Smith, 965 F.2d 1532, 1536 (9th Cir. 1992). He must establish the absence of a genuine issue of fact on each issue material to his affirmative defense. Id. at 1537; see also Anderson v. Liberty Lobby. Inc. 477 U.S. 242, 248 (1986) (a fact is material if it might affect the outcome of the suit under governing law, and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.") Once the moving party has come forward with this evidence, the burden shifts to the non-movant to set forth specific facts showing the existence of a genuine issue of fact on the defense.

A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn. 10-11 (9th Cir. 1995) (treating plaintiffs verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, and allegations were not based purely on his belief but on his personal knowledge).

The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party and the inferences must be drawn in the light most favorable to the nonmoving party. See id. at 630-31.

2. Analysis

Section 1983 does not contain its own limitations period. The appropriate period is that of the forum state's statute of limitations for personal injury torts. See Wilson v. Garcia, 471 U.S. 261, 276 (1985); Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). Because California has multiple statutes of limitations for different torts, the court borrows the general or residual statute for personal injury actions to use for a § 1983 action. See Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999). The general residual statute of limitations for personal injury actions is the one year period set forth at California Civil Procedure Code § 340(3) and is the applicable statute in § 1983 actions. See id. A claim generally accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. See Elliott, 25 F.3d at 802.

The court must give effect to a state's tolling provisions. See generally Hardin v. Straub, 490 U.S. 536, 543-44 (1989). One relevant tolling provision here is found in California Civil Procedure Code section 352.1, which recognizes imprisonment as a disability that tolls the statute of limitations when a person is "imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term of less than for life." See Cal. Civ. Proc. Code § 352.1(a). The tolling is not indefinite, however; the disability of imprisonment delays the accrual of the cause of action for a maximum of two years. See id. Thus, an inmate ordinarily has three years to bring a § 1983 claim for damages in California, i.e., the regular one year period under section 340(3) plus two years during which accrual was postponed due to the disability of imprisonment.

Another relevant tolling provision is found in California Penal Code § 352(a), which provides for tolling if the person is insane at the time the cause of action accrued. For purposes of the tolling provision, "the term `insane' has been defined as a condition of mental derangement which renders the sufferer incapable of caring for his property or transacting business, or understanding the nature or effects of his acts." Hsu v. Mt. Zion Hospital, 259 Cal.App.2d 562, 571 (Cal. Ct. App. 1968); cf. Feeley v. Southern Pac. Trans. Co., 234 Cal.App.3d 949, 952 (Cal. Ct. App. 1991) (tolling proper for time during which plaintiff was in a coma immediately after the injury that gave rise to his cause of action); Snyder v. Boy Scouts of America, 205 Cal.App.3d 1318, 1324 (Cal. Ct. App. 1988) (post-traumatic stress disorder does not count as "insanity" that tolls the limitations period). The disabilities of imprisonment and insanity must exist at the time the cause of action accrues in order to toll the limitations period. Cal. Code Civ. Proc. § 357.

Defendants met their initial burden on summary judgment by showing that Funtanilla did not file his complaint until three years and eleven weeks after the incident occurred. The tolling allowed for the disability of imprisonment is not enough to make his complaint timely because the complaint was filed more than three years after the incident.

The issue here is whether Funtanilla can benefit from the insanity tolling provision. Because Funtanilla's complaint was filed about three years and eleven weeks after the cause of action accrued, Funtanilla would have to raise a triable issue of fact that he was continuously insane for two years and eleven weeks after October 4, 1996 — the date on which the cause of action accrued. Rose v. Petaluma & Santa Rosa Ry. Co., 64 Cal.App. 213, 217 (Cal. Ct. App. 1923). "[I]t is a settled rule of construction that the exemption period cannot be extended by the connection of one disability with another; in other words, a succession of disabilities cannot be tacked upon the first disability so as to prevent the operation of the statute." Id. Funtanilla did not do so.

Even if one ignored Rose and assumed that the disabilities here could be tacked on to each other, Funtanilla would still have to show that he was insane within the meaning of Code of Civil Procedure § 352 for eleven straight weeks after the October 4, 1996 (when the incident occurred) or for eleven straight weeks after October 4, 1998 (when the disability for imprisonment ended) or maybe for eleven straight weeks before December 21, 1999 (when he filed his complaint). He does not raise a triable issue of fact that he suffered continuous insanity for any of these three eleven week periods.

Funtanilla asserts that he can show intermittent short periods of time during the three year and eleven week period, but that would not be enough to toll the limitations period. For example, Funtanilla declares: "I have seen records in my medical file that say I was admitted to prison hospitals, confined to hospital rooms, restrained to beds, medicated to unconsciousness for up to 5 days several times between 1996 and 1999." Funtanilla Decl., ¶ 5. Under California law, once Funtanilla's cause of action accrued and the statute began to run, no later disability would suspend it. See Cal. Code Civ. Proc. § 357; Larsson v. Cedars of Lebanon Hosp., 97 Cal.App.2d 704, 707 (Cal. Ct. App. 1950); Rose, 64 Cal.App. at 217. Funtanilla cannot double-count the disabilities of imprisonment and insanity by claiming for example that he was insane and imprisoned in all of 1997 and therefore that time should extend the limitations deadline by two years instead of one. On any day on which he had multiple disabilities, he gets a only one-day delay of the deadline

Funtanilla's opposition brief repeatedly misrepresents the evidence he has produced. He states "Funtanilla would not be found competent to stand trial in September 1996," citing the declaration of psychologist Dale Watson. Opposition, p. 2:24-25. He also repeats the misrepresentation that Dr. Watson's evaluation was made in 1996 in his Opposition at p. 3:15-16 and p. 4:7-8. Funtanilla's statement is misleading because the declaration was made in 1994, more than two years before the incident that gave rise to this action, and the declaration concerned a 1994 evaluation of Funtanilla. Although the 1994 declaration from Dr. Watson was recycled and submitted to this court in 1996 in a habeas action, this court never found Funtanilla not competent and there is no evidence than any other court found Funtanilla not competent to stand trial. Indeed, Funtanilla's current and continued incarceration in prison demonstrates otherwise.

Dr. Watson's declaration does indicate that Funtanilla has mental health problems. The declaration is sufficient to raise a triable issue of fact that Funtanilla suffered "insanity" at the relevant time period. Dr. Watson's declaration was executed two years before the incident at issue occurred and does not speak to Funtanilla's mental health after 1994. Dr. Watson did not explain whether the mental health problems he observed could be treated and whether they actually incapacitated Funtanilla. One cannot presume that Funtanilla's mental health problems described by Dr. Watson continued indefinitely. Such a presumption might require the dismissal of this action (or appointment of a guardian) because an insane Funtanilla cannot represent himself. And Funtanilla has not explained how he could be continuously suffering from insanity in light of his activities in this and the many other cases he filed (described in the "Background" section above) in the three year and eleven week period between the incident and the filing of the complaint. Additionally, the idea of insanity that continues to this day is wholly absurd in light of Funtanilla's current presence in the courthouse representing himself in a civil jury trial in Funtanilla v. Kalvelage, No. C 98-3818.

There is no triable issue of fact on the timeliness of the complaint. Defendants have met their burden and are entitled to judgment as a matter of law that the complaint was not filed within the time permitted by the relevant statute of limitations.

C. Funtanilla's Motion To Amend Complaint

A party may amend his complaint with leave of court at any time, and such leave "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). In considering whether to grant or deny a motion seeking leave to amend a complaint, the court may consider whether there is bad faith, undue delay, prejudice to the opposing party, futility in the amendment, and whether plaintiff has previously amended his complaint. See Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).

The futility of Funtanilla's proposed second amended complaint requires that leave to amend be denied.*fn3 As discussed in the preceding section, the action is time-barred. Allowing the filing of a second amended complaint to bring a claim against another defendant for that same incident would be futile because the action would be time-barred against the new defendant also. Moreover, the factors of undue delay and prejudice to the opposing party weigh against allowing amendment here. This action has been pending for over three years and the incident occurred over six years ago. There is no evidence that the proposed new defendant had any notice of the existence of this action or the existence of a claim against him. To bring him in at this late date, without any reasonable explanation from Funtanilla about why he waited so long to do so, is unfair. Even by Funtanilla's own reckoning, he know of the new defendant (nurse Scott) over a year before he filed his motion to amend). Funtanilla's undue delay in moving to amend — especially in waiting until there was a motion for summary judgment pending — supports the decision to deny leave to amend. See Contact Lumber Co. v. P.T. Moges Shipping Co. Ltd., 918 F.2d 1446, 1454 (9th Cir. 1990); M/V Am. Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1492 (9th Cir. 1983). Finally, Funtanilla's suggestion that this is simply a matter of putting one name in in place of another is unpersuasive — it is no more acceptable than it would be to tell Funtanilla that a disciplinary report issued and hearing held for another prisoner was meant for him and provided adequate procedural protections so that Funtanilla would now be bound by it. Funtanilla's motion to amend is DENIED. (Docket #34.) He will not be granted leave to file an amended complaint.

D. Defendants' Motion To Correct Typographical Errors

Defendants have filed a motion to correct typographical errors in the court's docket sheet. The court does not wish to encourage activities that consume the court's limited resources on clerical matters such as are addressed in defendants' motion. As a practical matter, the court reads the actual filings and transcripts rather than a docket sheet to determine who has appeared in an action, and expects the parties to do so also. Defendants have not provided legal authority for their request, have not provided the docket sheet that troubles them, and have not shown their standing to make the motion. The motion is DENIED.

CONCLUSION

Defendants' motion for summary judgment is GRANTED. (Docket #25.) Funtanilla's motion to amend his complaint is DENIED. (Docket #34.) Defendants' motion to correct typographical errors is DENIED. (Docket #37.) Judgment will be entered in defendants' favor and against plaintiff.

IT IS SO ORDERED.


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