United States District Court, N.D. California
KEVIN A. MACGREGOR, Plaintiff,
M.D. MARTIN, Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR RELIEF;
GRANTING DEFENDANT’S MOTION TO DISMISS
M. WHYTE UNITED STATES DISTRICT JUDGE
a California prisoner proceeding pro se, filed a civil rights
complaint pursuant to 42 U.S.C. § 1983 against defendant
Dr. M.D. Martin. Plaintiff claims that defendant was
deliberately indifferent to his serious medical needs.
Plaintiff has filed a motion for relief from the
court’s November 23, 2015 order to set aside default.
Defendant has filed an opposition. Plaintiff has filed a
reply, to which defendant has filed an objection. In
addition, defendant has moved to dismiss the complaint as
untimely. Although given an opportunity to respond, plaintiff
has not filed an opposition. For the reasons stated below,
plaintiff’s motion for relief is DENIED, and
defendant’s motion to dismiss is GRANTED.
to the complaint, on October 18, 2005, while plaintiff was
incarcerated at San Quentin State Prison
(“SQSP”), Nurse Yan and defendant saw plaintiff
because of a “man down” emergency. They looked at
plaintiff’s protruding hernia, and took
plaintiff’s vital signs. They did not treat or examine
plaintiff’s extreme pain. On November 1, 2005,
plaintiff’s “inginual hernia” on the left
side of his genital again protruded out, and inmates nearby
plaintiff’s cell called for “man down.”
Correctional officers took plaintiff to the infirmary where
Nurse Yan told them to put plaintiff in a holding tank to
wait with other inmates who were waiting for treatment. At
this point, plaintiff is curled up in a fetal position while
holding his hand over his protruding hernia. After two hours,
plaintiff asked Nurse Yan why he had not been seen by the
doctor yet. Nurse Yan informed plaintiff that defendant would
not see plaintiff because plaintiff was scheduled for
surgery, and there was nothing that they could do. Plaintiff
told Nurse Yan that this was the third time she and defendant
had treated plaintiff like this. Nurse Yan responded that
unless it was a life-threatening condition, they did not have
to see plaintiff. On November 8, 2005, plaintiff told a
correctional officer that his hernia had been protruding for
over an hour and plaintiff was in extreme pain. Correctional
Officer Graves called the infirmary about plaintiff, and
Nurse Yan and defendant again refused to see him.
Plaintiff’s Motion for Relief from Judgment
has filed a motion for relief from judgment pursuant to Rule
60(b)(3) and 60(d)(3). In particular, plaintiff wishes the
court to reconsider its November 23, 2015 order granting
defendant’s motion to set aside default. Though not a
model of clarity, plaintiff appears to be arguing that the
Attorney General’s Office conspired with defendant to
misrepresent to the court that defendant retired from SQSP.
Plaintiff suggests that it is possible that defendant was
fired from SQSP, and if so, the Attorney General’s
Office could not legally represent defendant in this case.
initial matter, because the November 23, 2015 order was not a
final order or judgment, Rule 60 is inapplicable here.
Rather, Rule 54(b) is the relevant rule.
“Reconsideration is appropriate if the district court
(1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” School Dist. No. 1J v. ACandS,
Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
plaintiff has not demonstrated satisfaction of any of these
three factors to warrant reconsideration of the court’s
order. In addition, for the reasons presented in
defendant’s opposition and objection, plaintiff’s
motion is DENIED.
Defendant’s Motion to Dismiss as Untimely
argues that plaintiff's complaint is untimely. He
proffers that this action occurred, at the latest, on
November 8, 2005, the date upon which plaintiff submitted
that defendant refused to see him. Plaintiff's federal
complaint was filed in May 2013.
1983 does not contain its own limitations period. The
appropriate period is that of the forum state’s statute
of limitations for personal injury torts. See Wilson v.
Garcia, 471 U.S. 261, 276 (1985); TwoRivers v.
Lewis, 174 F.3d 987, 991 (9th Cir. 1999). In California,
the general residual statute of limitations for personal
injury actions is the two-year period set forth at California
Civil Procedure Code § 335.1 and is the applicable
statute in § 1983 actions. See Maldonado v.
Harris, 370 F.3d 945, 954 (9th Cir. 2004); see
also Cal. Civ. Proc. Code § 335.1 (current
codification of residual limitations period, which became
applicable on January 1, 2003, is two years). Thus, without
tolling, if plaintiff’s cause of action accrued in
November 2005, plaintiff’s federal complaint would be
due in November 2007.
Civil Procedure Code section 352.1 recognizes imprisonment as
a disability that tolls the statute of limitations when a
person is “imprisoned on a criminal charge, or in
execution under the sentence of a criminal court for a term
of less than for life.” See Cal. Civ. Proc.
Code § 352.1(a). Thus, an inmate has four years to bring
a § 1983 claim for damages in California, i.e., the
regular two year period under section 335.1 plus two years
during which accrual was postponed due to the disability of
imprisonment. See Jones v. Blanas, 393 F.3d 918, 928
n.5 (9th Cir. 2004). Tolling the statute an additional two
years, therefore, plaintiff’s federal complaint was due
in November 2009.
statute of limitations is also tolled for the period in which
a prisoner administratively exhausted his underlying
grievances, pursuant to the requirements of the PLRA. See
Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005)
(“the applicable statute of limitations must be tolled
while a prisoner completes the mandatory exhaustion
process”). Here, plaintiff has provided a copy of his
administrative appeal to the first level of review. That
appeal is dated November 4, 2005. (Dkt. No. 1-2 at 3.)
Plaintiff pursued his administrative remedies through to the
Director’s Level of Review, which responded to
plaintiff on July 3, 2006. (Dkt. No. 1-2 at 11.) Tolling to