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Parks v. Rolfing

United States District Court, E.D. California

May 9, 2018

KENNETH WAYNE PARKS, Plaintiff,
v.
JEFFREY ROLFING, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 No. 4).

         I. Motion to Amend

         A. Legal Standard

         A court 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).

         B. Proposed Amended Complaint

         Plaintiff 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.)

         With 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.

         C. Statute of Limitations

         The 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).

         In 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.

         D. Conclusion

         Because 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.[1]

         II. Screening of the Fourth Amended Complaint

         A. Statutory Screening of Prisoner Complaints

         The 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).

         “Federal 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. 2004)).

         “[A] 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).

         B. Allegations

         In the Fourth Amended Complaint, plaintiff asserts that defendants Rohlfing, [2] Miranda, Medina, Garbutt, Schmidt, and Lee were deliberately indifferent to his serious medical needs. (ECF No. 71-1.)

         In 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, ΒΆ 20.) He requested treatment on September 9, 2013, and the following day he was seen by ...


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