United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding through counsel with a civil
rights action pursuant to 42 U.S.C. § 1983. Currently
pending are plaintiff's motion to amend the complaint
(ECF No. 71) and the parties' stipulation to modify the
scheduling order (ECF No. 83). Plaintiff has also filed a
notice declining magistrate judge jurisdiction (ECF No. 85)
in an apparent attempt to withdraw his previous consent (ECF
Motion to Amend
should freely grant leave to amend a pleading when justice so
requires. Fed.R.Civ.P. 15(a)(2). “Liberality in
granting a plaintiff leave to amend is subject to the
qualification that the amendment not cause undue prejudice to
the defendant, is not sought in bad faith, and is not futile.
Additionally, the district court may consider the factor of
undue delay.” Bowles v. Reade, 198 F.3d 752,
757-58 (9th Cir. 1999) (citations omitted).
Proposed Amended Complaint
has filed a motion to amend in which he seeks to file a
fourth amended complaint. (ECF No. 71). The proposed amended
complaint seeks to clarify the claims against the existing
defendants; restore claims against defendants Lee and
Schmidt, who were previously dismissed; and modify the
request for relief. (Id. at 3.) Defendants oppose
the motion to amend on the grounds that the claims against
Lee and Schmidt are barred by the statute of limitations and
that the claims against Lee further fail to state a claim.
(ECF No. 77.)
the exception of the claims against defendant Lee, which will
be discussed in more detail below, the proposed amended
complaint states potentially viable claims against each of
the defendants and seeks to modify the requested relief and
therefore does not appear to be sought in bad faith.
Moreover, since the motion to amend was filed by the deadline
proposed by the parties and adopted by this court (ECF Nos.
69, 70), the court does not find that the motion was the
product of undue delay. Nor does the court find that the
currently appearing defendants would be prejudiced by the
extensions in discovery necessitated by the addition of a new
defendant since the parties recently requested an extension
of the existing discovery deadlines. (ECF No. 83.) However,
if the claims against Lee and Schmidt are beyond the statute
of limitations, as defendants claim, then amendment as to
those claims would be futile.
Statute of Limitations
statute of limitations in a § 1983 action is that
provided by the state for personal injury torts. Wallace
v. Kato, 549 U.S. 384, 387 (2007) (citations omitted).
California law provides a two-year statute of limitations for
personal-injury actions, plus an additional two years of
tolling for the statute of limitations based on the
disability of imprisonment where the term is less than for
life. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir.
2004) (citing Cal. Civ. Proc. Code §§ 335.1,
352.1). The statute of limitations is further “tolled
while a prisoner completes the mandatory exhaustion
process.” Brown v. Valoff, 422 F.3d 926, 943
(9th Cir. 2005).
arguing that plaintiff's proposed claims against Lee and
Schmidt are barred by the statute of limitations, defendants
use January 1, 2014, the latest date they claim the claims
could have accrued, as the date from which the statute of
limitations began to run. (ECF No. 77 at 5.) Based upon this
date, defendants argue that with the two-year statute of
limitations and additional two years based on plaintiff's
imprisonment, he had until January 1, 2018, to timely bring
his claims. (Id.) However, as plaintiff points out,
defendants have failed to account for the tolling that
occurred as a result of plaintiff pursuing administrative
remedies. (ECF No. 80 at 6.) The proposed amended complaint
avers that plaintiff exhausted his administrative remedies on
July 22, 2014 (ECF No. 71-1 at 18, ¶ 138), and
defendants have not challenged the sufficiency of that appeal
to toll the statute of limitations as it relates to the
claims against defendants Lee and Schmidt. Accordingly, the
statute of limitations did not begin to run until July 23,
2014, and therefore does not expire until July 22, 2018.
Since the claims are not barred by the statute of
limitations, the court finds that amendment would not be
futile on this ground. Because the claims are not untimely,
the court need not consider whether they relate back to any
of the previous versions of the complaint.
the court finds that leave to amend would not cause undue
prejudice to the defendants, is not sought in bad faith, is
not futile on account of untimeliness, and that plaintiff did
not unduly delay, leave to amend will be granted. The Clerk
of the Court will be directed to file the Fourth Amended
Complaint, which will now be screened.
Screening of the Fourth Amended Complaint
Statutory Screening of Prisoner Complaints
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity, regardless of whether
plaintiff is represented by counsel. 28 U.S.C. §
1915A(a); In re Prison Litig. Reform Act, 105 F.3d
1131, 1134 (6th Cir. 1997) (“District courts are
required to screen all civil cases brought by prisoners,
regardless of whether the inmate paid the full filing fee, is
a pauper, is pro se, or is represented by counsel, as [§
1915A] does not differentiate between civil actions brought
by prisoners.”). The court must dismiss a complaint or
portion thereof if the prisoner has raised claims that are
“frivolous, malicious, or fail to state a claim upon
which relief may be granted, ” or that “seek
monetary relief from a defendant who is immune from such
relief.” 28 U.S.C. § 1915A(b). A claim “is
[legally] frivolous where it lacks an arguable basis either
in law or in fact.” Neitzke v. Williams, 490
U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d
1221, 1227-28 (9th Cir. 1984). The critical inquiry is
whether a constitutional claim, however inartfully pleaded,
has an arguable legal and factual basis. Franklin,
745 F.2d at 1227-28 (citations omitted).
Rule of Civil Procedure 8(a)(2) requires only ‘a short
and plain statement of the claim showing that the pleader is
entitled to relief, ' in order to ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). However, in order to survive dismissal for failure
to state a claim, a complaint must contain more than “a
formulaic recitation of the elements of a cause of
action;” it must contain factual allegations sufficient
“to raise a right to relief above the speculative
level.” Id. (citations omitted).
“‘[T]he pleading must contain something more . .
. than . . . a statement of facts that merely creates a
suspicion [of] a legally cognizable right of
action.'” Id. (alteration in original)
(quoting 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure ' 1216 (3d ed.
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). In reviewing a complaint
under this standard, the court must accept as true the
allegations of the complaint in question, Hosp. Bldg. Co.
v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as
well as construe the pleading in the light most favorable to
the plaintiff and resolve all doubts in the plaintiff's
favor, Jenkins v. McKeithen, 395 U.S. 411, 421
(1969) (citations omitted).
Fourth Amended Complaint, plaintiff asserts that defendants
Rohlfing,  Miranda, Medina, Garbutt, Schmidt, and Lee
were deliberately indifferent to his serious medical needs.
(ECF No. 71-1.)
1997, plaintiff received a prosthetic cheekbone and eye orbit
due to damage caused by a gunshot wound and from that time
periodically suffered eye infections in his right eye.
(Id. at 3, ¶¶ 15, 17.) On September 7,
2013, plaintiff's right eye began to swell and he
recognized the signs of a potential eye infection.
(Id. at 4, ¶ 20.) He requested treatment on
September 9, 2013, and the following day he was seen by