HENRY A. JONES, Plaintiff,
DR. JAFFE et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is before the court on a motion to dismiss brought on behalf of defendant Dr. O'Neill. In response to the motion, plaintiff has filed a motion to amend, together with a proposed second amended complaint. Defendant Dr. O'Neill has filed an opposition to the motion to amend.
Plaintiff is proceeding on a first amended complaint against defendants Dr. O'Neill, Dr. Jaffe, and Dr. Frazier-Grubbs. In the relevant part of his first amended complaint, plaintiff alleges as follows. In January 2007, he began to feel tightness in his throat area. Prison officials sent him to the infirmary and then to an outside hospital as a precaution. At the hospital, defendant Dr. O'Neill told him he needed a defibrillator if he wanted to live. For several days, plaintiff refused the defibrillator but ultimately gave consent to the surgical procedure to implant one. Plaintiff alleges that since his surgery various doctors and nurses have told him that he never needed a defibrillator and that in fact it was the medication he had been taking which caused the side effects he experienced back in 2007. Plaintiff claims that defendant Dr. O'Neill's conduct violated the Eighth Amendment and various state laws. In terms of relief, plaintiff seeks monetary damages. (Am. Compl. at 13-14 & 16-17.)
THE PARTIES' PENDING MOTIONS
Counsel for defendant Dr. O'Neill has filed a motion to dismiss on the grounds that the applicable statute of limitations bars the present action. Alternatively, defense counsel argues that plaintiff's complaint fails to state a cognizable claim against defendant Dr. O'Neill. (Def.'s Mot. to Dismiss at 3-10.)
Plaintiff has not filed an opposition to the pending motion to dismiss. Instead, plaintiff has filed a motion for leave to amend his complaint, together with a proposed second amended complaint. In his motion to amend, plaintiff explains that he would like to dismiss defendants Dr. Jaffe and Dr. Frazier-Grubbs as well as dismiss his state law claims. With the assistance of a fellow inmate, plaintiff has also clarified his factual allegations and claims against defendant Dr. O'Neill in his proposed second amended complaint. (Pl.'s Mot. to Am. 1-3 & Proposed Sec. Am. Compl.)
Counsel for defendant Dr. O'Neill has filed an opposition to plaintiff's motion to amend on the grounds that plaintiff failed to obtain leave of the court prior to filing his second amended complaint, failed to articulate grounds for his amendment, failed to allege sufficient facts rising to the level of deliberate indifference in his proposed second amended complaint, and because any further amendment by plaintiff would be futile because the applicable statute of limitations bars the present action. (Def.'s Opp'n to Pl.'s Mot. to Amend at 3-8.)
The court will address plaintiff's motion to amend first because if the court grants plaintiff's motion, defendant Dr. O'Neill's motion to dismiss will be rendered moot. Under Rule 15 of the Federal Rules of Civil Procedure, plaintiff may amend his complaint once as a matter of course within twenty-one days after serving it or twenty-one days after service of a responsive pleading or motion pursuant to Rule 12(b). See Fed.R.Civ.P. 15. In all other cases, plaintiff may amend his complaint with defendant's written consent or the court's leave. See id. As noted above, plaintiff has sought the court's leave by filing the pending motion to amend, together with a proposed second amended complaint. See 28 U.S.C. § 1915A (plaintiff's pleadings are subject to evaluation by this court pursuant to the in forma pauperis statute).
Granting or denying leave to amend a complaint is within the discretion of the court. See Chodos v. West Publ'g Co. , 292 F.3d 992, 1003 (9th Cir. 2002). "The court should freely give leave when justice so requires." Fed.R.Civ.P. 15. Under the circumstances of this case, the undersigned will recommend that the court grant plaintiff's motion to amend and deny defendant Dr. O'Neill's motion to dismiss as moot.
Contrary to defense counsel's argument, the court finds that, liberally construed, plaintiff's proposed second amended complaint states a cognizable claim for relief against defendant Dr. O'Neill for deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Specifically, plaintiff alleges in his proposed second amended complaint that defendant Dr. O'Neill refused to discharge him from the hospital until plaintiff gave his consent for the defendant to implant a defibrillator in plaintiff's chest. Plaintiff alleges that he refused to give his consent to such a procedure for five days but then reluctantly agreed to the surgical procedure out of fear and stress. Plaintiff subsequently learned that defendant Dr. O'Neill's surgical procedure was unnecessary, that plaintiff did not need a defibrillator, and that the defibrillator defendant Dr. O'Neill implanted in his chest had been recalled as defective even before defendant Dr. O'Neill had implanted it. Plaintiff maintains that defendant Dr. O'Neill's conduct has caused him prolonged and extreme physical pain. (Proposed Sec. Am. Compl. at 19-23.)
If plaintiff proves these allegations to be true, he has a reasonable opportunity to prevail on the merits of this action. See Estelle v. Gamble , 429 U.S. 97, 104-05 (1976) (deliberate indifference may manifest "by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed"); Lopez v. Smith , 203 F.3d 1122, 1132 (9th Cir. 2000) ("A prisoner need not prove that he was completely denied medical care.") (en banc); Ortiz v. City of Imperial , 884 F.2d 1312, 1314 (9th Cir. 1989) ("access to medical staff is meaningless unless that staff is competent and can render competent care."). Cf. Jackson v. Carey , 353 F.3d 750, 755 (9th Cir. 2003) (on a motion to dismiss, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed, it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.").
Moreover, contrary to defense counsel's argument that any further amendment would be futile because the applicable statute of limitations bars the present action, the court finds that plaintiff timely filed this civil rights action. Specifically, plaintiff was entitled to four years from the date his claims against defendant Dr. O'Neill accrued to file this cause of action. "When, as here, a federal civil rights statute does not include its own statute of limitations, federal courts borrow the forum state's limitations period for personal injury torts[.]" Lukovsky v. City & County of San Francisco. , 535 F.3d 1044, 1048-49 (9th Cir. 2008). A § 1983 action such as this is governed by California's two-year statute of limitations for personal injury actions. Jones v. Blanas , 393 F.3d 918, 927-28 (9th Cir. 2004). However, California law also provides that imprisonment delays accrual of a cause of action for up to two years. Cal. Civ. Proc. Code § 352.1; see also Lawrence v. Berry, No. 12-16118, 2013 WL ...