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Provencio v. Vazquez

July 29, 2009

DANIEL PROVENCIO, JR., PERSONALLY AND AS A SUCCESSOR IN INTERST TO DANIEL PROVENCIO, DECEASED, BY HIS GUARDIAN AD LITEM, MARIA LUCERO, ET AL, PLAINTIFFS,
v.
PATRICIA L. VAZQUEZ, ET AL DEFENDANTS.



The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT, MICHAEL SONGER'S, MOTION TO DISMISS PORTIONS OF THIRD AMENDED COMPLAINT.

Document # 129

BACKGROUND

This case arises from an incident at Wasco State Prison -- Reception Center ("WSP") taking place on January 16, 2005. Daniel Provencio ("Provencio"), an inmate, was shot in the head with a rubber projectile from a 40mm launcher operated by correctional officer Mattew Palmer. Provencio was later pepper-sprayed and taken to the "emergency room" at WSP. The conduct of the medical staff, acting in alleged accordance with policies put in place by Defendant, provides the factual grounds for Plaintiffs' claims. Plaintiffs' filed suit in this court on January 12, 2007. Plaintiffs' third amended complaint was filed on January 2, 2009. In the third amended complaint, Plaintiffs' allege violations of Provencio's Eighth Amendment rights and file suit pursuant to the provisions of 42 U.S.C. § 1983.

For the current motion before the court, Defendant is Dr. Michael Songer ("Defendant"), who was the Health Care Manager for WSP, sued fictitiously as "Doe" 20, 30, and 31 in the third amended complaint. Defendant moved to dismiss portions of the third amended complaint on April, 27, 2009 and this motion was taken under submission on June 4, 2009.

LEGAL STANDARD

In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court examines whether a complaint "contain[s] sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976); Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). A Rule 12(b)(6) dismissal can be based on either the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). In Iqbal the Supreme Court affirmed the broad application of the "plausible" standard, announced in Twombly, for examining the sufficiency of pleadings under Federal Rule of Civil Procedure 8. Iqbal 129 S.Ct. at 1953 (stating that the Court's decision in Twombly was based on "[the Court's] interpretation and application of Rule 8" and continuing that "[The Court's] decision in Twombly expounded the pleading standing standard for 'all civil actions'"). In applying the Twombly standard in Iqbal the Court outlined a two step process for analyzing a complaint. Id. at 1950-51. First, a reviewing court identifies all legal conclusions "that are not entitled to the assumption of truth." Iqbal 129 S.Ct. at 1949-51 (quoting Twombly, 550 U.S. at 555, parenthetically for the proposition that the Court "[is] not bound to accept as true a legal conclusion couched as a factual allegation"). Second, a court, "draw[ing] on its judicial experience and common sense", must determine in the specific context of the case whether the facts, if taken as true, establish a plausible claim for relief. Id. at 1950.

FACTS

This case involves numerous defendants and numerous facts relevant to various defense claims. The general facts as stated in the complaint are that on January 16, 2005, Provencio, an inmate at WSP, was shot in the head with a rubber projectile from a 40mm launcher operated by correctional officer Matthew Palmer. Provencio was later pepper-sprayed and taken to the "emergency room" at WSP. Provencio was attended to by a registered nurse, David Hicks, who paged the on-call doctor, Bernard Ferrer Ramos. Dr. Ramos drove from Bakersfield to WSP, approximately 35 miles away, and upon inspecting Provencio called for an ambulance to transport Provencio to a hospital. Provencio went into cardio-pulmonary arrest while being transported. Provencio later suffered death as a result of his wounds.

The facts specifically relevant to this motion are as follows. Plaintiffs filed suit in this court on January 12, 2007. The Plaintiffs' case was stayed from July 17, 2007, to June 11, 2008, while Plaintiffs sought remedies in another action in state court. Plaintiffs' third amended complaint was filed on January 2, 2009. In the third amended complaint, Plaintiffs allege violations of Provencio's Eighth Amendment rights and file suit pursuant to the provisions of 42 U.S.C. § 1983. On March 17, 2009, Plaintiffs filed amendments to their third amended complaint identifying Dr. Michael Songer as "Doe" 20, 30 and 31.

The complaint alleges that Doe 20 and 30 failed and refused to train WSP personnel to use medivac helicopters to transport physicians to WSP or to transport injured inmates from WSP. Plaintiffs' allege Doe 31 "well-knew" inmates regularly suffered injuries requring the attention of a licenced medical doctor and had an obligation to staff the medical facilities at WSP with a full-time doctor and provide "adequate equipment and support personnel properly to attend to anticipated injuries, and to stabilize patients prior to transport to the nearest general hospital 35 miles away in Bakersfield, California." Third Amended Complaint at ¶¶ 55-57. Among other allegations, the complaint alleges Defendant failed to properly staff WSP because Defendant had contracted with Defendant Ramos to be on-call for medical emergencies instead of staffing a full-time doctor to always be on duty at WSP.

DISCUSSION

I. Applicability of California Code of Civil Procedure section 583.420 to California's Fictitious Defendant Pleading Procedure in Federal Court

As a threshold issue Defendant contends that Plaintiffs' claims are time-barred under the State of California's "Doe" pleading procedures. Specifically Defendant contends that Plaintiffs' action must be dismissed pursuant to California Code of Civil Procedure section 583.420 which grants California State courts the discretion to dismiss a suit for failure to serve a defendant within two years. Defendant, however, mistakes the nature of California Code of Civil Procedure section 583.420 and its applicability in a United States District Court.

Plaintiffs' claims are made pursuant to 42 U.S.C. § 1983 which creates a civil action for the deprivation of federally protected rights. Because 42 U.S.C. § 1983, contains no specific statute of limitations, federal courts borrow state statues of limitations for personal injury actions in Section 1983 suits. Wilson v. Garcia, 471 U.S. 261, 276 (1985); Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). "Federal law determines when a civil rights claim accrues." Maldonado, 370 F.3d at 954; Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir.2001). Accrual occurs when the plaintiff has "a complete and present cause of action." Wallace v. Kato, 549 U.S. 384, 388 (2007). The Ninth Circuit has explained that "[u]nder federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Maldonado, 370 F.3d at 955; Knox, 260 F.3d at 1013.

Defendant is correct that in a 42 U.S.C. 1983 action, when the court borrows the statute of limitations from California State law, California's procedure for relation back in the suing of fictitious defendants controls. Merritt v. County of Los Angeles, 875 F.2d 765, 768 (9th Cir. 1989); Cabrales v. County of Los Angeles, 864 F.2d 1454, 1463 (9th Cir. 1988). The court's conclusion in Cabrales expressly relied on Lindley v. General Elec. Co., 780 F.2d 797 (9th Cir. 1986). Cabrales at 1463. In Lindley, the Ninth Circuit adopted a district court's determination that taken together California Civil Procedure Code sections 340, 474, and 581a can functionally create a four year statute of limitations if the plaintiff filed suit within one year of accrual of the cause of action and the identity of defendants are unknown to plaintiff.*fn1 Lindley at 800 (paraphrasing and adopting Rumberg v. Weber Aircraft Corp., 424 F.Supp. 294 (C.D.Cal.1976)); Cal. Civ. Proc. Code §§ 340, 474, 581a, 583.210.*fn2 Some commentators suggest the line of cases following Cabrales and Merritt can be explained as a determination that California's relation-back rule is inextricably intertwined with its statute of limitations. 6A Wright, Miller & Kane, Fed. Prac. & Proc. Civ.2d § 1503 (2009). This contention is supported by the legislative comments to section 583.210 when it was enacted in 1984 following the repeal of section 581a. See Legislative Committee Comments--Assembly Cal. Civ. Proc. Code § 583.210 (West 2009) ("section 583.210 applies to a defendant sued by a fictitious name from the time the complaint is filed."). Although Merrit and Cabrales do not specifically reference section 583.210, it is clear from the context, underlying opinions and subsequent cases that section 583.210 is the statute that in combination with section 474 has been found to allow plaintiffs suing fictitious defendants in federal court under 42 U.S.C. 1983 three years to serve a "Doe" defendant upon ascertaining their identity. See Rodgers v. Horsely, 123 Fed. Appx. 281, 285 (9th Cir. 2005) (citing the California Supreme Court in Norgart v. Upjohn Co., 21 Cal.4th 383, 389 (1999), and stating that a 42 USC § 1983 plaintiff "has three years to identify the unknown defendant, amend the complaint, and effect service of the complaint"); Motley v. Parks, 198 F.R.D. 532, 534-35 (C.D. Cal. 2000) (finding, in a case arising under 42 U.S.C § 1983, that Federal Rule of Civil Procedure 15(c)(1) applied to California Civil Procedure Code section 583.210 and allowed plaintiffs three years to serve "Doe" defendants).

However, in the current case Defendant is asking this court to take a step beyond Merrit and Cabrales. Defendant contends that this court should apply California Civil Procedure sections 583.410 and 583.420, which grant California State courts the discretion to dismiss claims where plaintiffs have failed to serve a defendant within two years. California Civil Procedure section 583.410(a) states "the court may in its discretion dismiss an action for delay in prosecution pursuant to this article. . . if to do so appears to the court appropriate under the circumstances of the case." Section 583.420 provides, in relevant part, "[t]he court may not dismiss an action pursuant to this article for delay in prosecution except" if "[s]ervice is not made within two years after the action is commenced against the defendant." Cal. Civ. Proc. Code § 583.420(a)(1). Defendant provides California case law suggesting that dismissal is "required" after two years where "no excusable delay" has been shown.*fn3

This court holds that section 583.420 is not controlling for the following reasons. First, section 583.420, unlike section 583.210, does not contain any Legislative Comment indicating it is specifically a part of California's "Doe" pleading procedures. See Legislative Committee Comments--Assembly Cal. Civ. Proc. Code § 583.420 (West 2009). In fact, article four of section 583 is entitled "Discretionary Dismissal for Delay" and the Legislative Comments indicate that section 583.420 "continues the substance of section 583(a)", not former section 581a. Id. Second, the Federal Rules of Civil Procedure already furnish this court with the procedure and grounds for discretionary dismissal in the form of Rule 41(b) of the Federal Rules of Civil Procedure. Rule 41(b) provides that "If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Third, "when it is necessary for [the federal courts] to borrow a statute of limitations for a federal cause of action, [the federal courts] borrow no more than necessary." West v. Conrail, 481 U.S. 35, 39 (1987). Without devolving into a full Erie-Hanna analysis, this court concludes that section 583.420, concerning discretionary dismissal for delay, is not inextricably intertwined nor a substantive element of California's "Doe" pleading procedure. See Hanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1144 (1965) ("When a situation is covered by one of the Federal ...


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