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Jamisi Jermaine Calloway v. A. K. Scribner

March 11, 2013

JAMISI JERMAINE CALLOWAY,
PLAINTIFF,
v.
A. K. SCRIBNER , ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING DEFENDANTS CHEN, ALLISON, AND SALAMA'S MOTIONS TO DISMISS ECF Nos. 13, 15

I. Background

Plaintiff Jamisi Jermaine Calloway ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on May 17, 2011. This action is proceeding on Plaintiff's First Amended Complaint, filed December 19, 2011, against Defendants D. G. Adams, K. Allison, M. Bendon, Chen, D. Deering, F. Salama, and A. K. Scribner for deliberate indifference to a serious medical need in violation of the Eighth Amendment. Pending before the Court is Defendant K. Allison's Motion to Dismiss, filed July 30, 2012, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for non-compliance with the statute of limitations. Def.'s Mot. Dismiss, ECF No. 13. Plaintiff filed an opposition on August 13, 2012. ECF No. 16. On August 28, 2012, Defendant Allison filed a reply. ECF No. 19.*fn1

Also pending is Defendant Chen's Motion to Dismiss, filed August 1, 2012, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for non-compliance with the statute of limitations.

ECF No. 15. On August 24, 2012, Plaintiff filed his opposition. ECF No. 18. On August 28, 2012, 3 Defendant Chen filed a reply. ECF No. 21. The matters are submitted pursuant to Local Rule 230(l). 4

II. Summary of First Amended Complaint

Plaintiff was previously incarcerated at California Substance Abuse Treatment Facility ("CSATF") and Corcoran State Prison ("CSP") in Corcoran, California, where the events giving rise 7 to this action occurred. Plaintiff named as Defendants: CSATF warden Derral G. Adams, CSATF 8 medical doctor D. Deering, medical doctor Chen at Gambro Healthcare, CSATF chief medical 9 officers F. Salama and K. Allison, CSP chief medical officer M. Bendon, and CSP warden A. K. Scribner.

Plaintiff alleged the following. On January 30, 2002, Plaintiff's central catheter came out. Plaintiff requested a permanent revision of his AV fistula in his arm for hemodialysis, not a temporary catheter. On February 6, 2002, Defendant Deering returned Plaintiff to San Joaquin Community Hospital for another temporary catheter. A temporary ACH catheter was left in Plaintiff's chest, which created a high risk of infection for Plaintiff. Defendant Adams, Deering, and Salama knew of this higher risk of infection and did not have it replaced. Defendants Adams, Deering, Salama, and Chen were aware that Plaintiff needed an AV fistula to receive adequate renal hemodialysis. On May 21, 2002, Plaintiff was admitted to the hospital for an infection, and Defendants Adams, Deering, Salama, and Chen all knew that Plaintiff needed a permanent catheter. Plaintiff was later transferred on December 9, 2002 to CSP. Defendant Allison failed to have Plaintiff's temporary catheter changed. Defendant Bendon was fully aware that Plaintiff needed a permanent catheter rather than a temporary one, but failed to do so. On February 28, 2003, Defendant Scribner was contacted directly regarding Plaintiff's medical needs but failed to respond.

On November 14, 2005, Defendant Chen was fired as Plaintiff's doctor because he told Plaintiff that as a prisoner he had no rights regarding his serious medical problems. The ACH catheter was finally removed in 2006.

Plaintiff requests as relief a transfer to California Medical Facility for adequate renal care and hemodialysis, and compensatory and punitive damages.

III. Analysis

Defendants contend that Plaintiff failed to comply with the applicable statute of limitations.

Defs. Salama and Allison's Mot. Dismiss 6:2-27, ECF No. 13; Def. Chen's Mot. Dismiss 7:9-25, 4 ECF No. 15. Because § 1983 contains no specific statute of limitations, federal courts should 5 borrow state statutes of limitations for personal injury actions in § 1983 suits. See Wallace v. Kato, 6 549 U.S. 384, 387 (2007); Lukovsky v. City of San Francisco, 535 F.3d 1044, 1048 (9th Cir.2008). 7

Federal courts should also borrow all applicable provisions for tolling the limitations period found in 8 state law. Wallace, 549 U.S. at 387. California's statute of limitations for an action for a personal 9 injury caused by the wrongful or negligent act of another is two years from the date of accrual. Cal. Civ. Proc. Code § 335.1 (2009). California's statute of limitations may be tolled up to two years for a prisoner's monetary damage claims. Id. § 352.1.*fn2 Federal law determines when a cause of action accrues and the statute of limitations begins to run for a ยง 1983 ...


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