Opinion
1:23-cv-01400.-CL
07-23-2024
WYLING LANSING CAMBRIUM, Plaintiff, v. CSL PLASMA and JOHN AND JANE DOES, Defendants.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE, Magistrate Judge.
Plaintiff Wyling Lansing Cambrium, a self-represented litigant, seeks to proceed in forma pauperis (“IFP”) in this action against CSL Plasma and unnamed defendants. On September 26, 2023, the Court entered an Opinion and Order (#6) dismissing without prejudice and with leave to file a First Amended Complaint within thirty (30) days. Plaintiffs IFP application (#2) and other motions (#3, #4), have been held in abeyance. The First Amended Complaint (#23) was filed on June 27, 2024. For the reasons below, this action should be dismissed with prejudice.
DISCUSSION
Generally, all parties instituting any civil action in United States District Court must pay a statutory filing fee. 28 U.S.C. § 1914(a). However, the federal IFP statute, 28 U.S.C. § 1915(a)(1), provides indigent litigants an opportunity for meaningful access to the federal courts despite their inability to pay the costs and fees associated with that access. To authorize a litigant to proceed IFP, a court must make two determinations. First, a court must determine whether the litigant is unable to pay the costs of commencing the action. 28 U.S;C. § 1915(a)(1). Second, it must assess whether the action is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Here, the Court has reviewed Plaintiff's IFP paperwork and finds he is unable to pay the costs and fees associated with the filing; thus meeting the first determination. In the prior Opinion (#6), the Court determined that, as pled, the Court lacked subject matter jurisdiction over the matter and that the claim was likely barred by the statute of limitations. The second determination was therefore not met. Now, Plaintiff has filed an Amended Complaint, and the Court reconsiders the second determination.
Plaintiffs Amended Complaint (#23), as with the original (#1), alleges that a phlebotomist at CSL Plasma negligently “set the apheresis machine to overdraw plasma.” Amend. Complt Att. B (#23). Plaintiff claims that, as a result of this negligence, he experienced discomfort, including intense sweating and hot flashes for nearly a month, and abdominal cramps. He claims that the overdraw also caused him to become diabetic. Plaintiff alleges that this incident took place on. August 21, 2021, at the Defendant's Medford, Oregon clinic.
The Amended Complaint cures one deficiency identified in the Court's prior Order by alleging that Defendant's principal place of business, or “residence,” is in the state of Florida, thus giving the parties diversity of citizenship. However, the Court's prior Order also identified an issue with the statute of limitations, and that deficiency cannot .be overcome.
Actions for claims for medical negligence in Oregon must generally be commenced within two years. ORS 12.110; Waldner v. Stephens, 345 Or. 526, 200 P.3d 556, 565 (Or. 2008). Here, the incident took place on August 21, 2021, and Plaintiff filed his Complaint on September 26, 2023. Plaintiff attaches an explanation for his untimely filing, citing a long list of items that he attempted while diligently pursuing his rights, including difficulties with research, personal, health struggles, attempts to confer and negotiate with the Defendant, attempts to hire an attorney and then a paralegal, and other daily obligations that took up his time. In particular, he claims that his health condition “included mental confusion, despair, exhaustion and physical lack of energy to do many things.”
Plaintiff requests that the Court grant him “equitable tolling” of the statute of limitations, citing Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) and Holland v. Fla., 560 U.S. 631, 645,130 S.Ct. 2549,2560, 177 L.Ed.2d 130 (2010), which affirmatively determined that § 2244(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is subject to equitable tolling. Plaintiff does not bring an AEDPA claim, however. Plaintiffs claim for medical malpractice is a state law negligence claim, therefore, unlike an AEDPA claim, it is not governed by a federal statute of limitations, but by state law.
Courts in this district have presumed equitable tolling is available under Oregon law under at least some circumstances, though it is rare. See Monical v. Marion Cnty., No. 6:18-CV-103-YY, 2021 WL 228891, at *4 (D. Or. Jan. 22, 2021) (discussing the history of equitable tolling in Oregon). Although Oregon courts have discussed “certain circumstances,” “various circumstances,” and that equitable tolling has been applied, no clear Oregon-specific equitable tolling test exists. Id. The general equitable tolling test requires that a litigant establish (1) that he or she has been pursuing his or her rights diligently, and (2) that some extraordinary circumstance stood in his or her way. Monical, 2021 WL 228891, at *4 (citing Credit Suisse Sec. (USA) LLC v. Simmonds, 566 U.S. 221, 227 (2012); Booth v. United States, 914 F.3d 1199, 1207 (9th Cir. 2019); see also 51 Am. Jur. 2d Limitation of Actions § 155 (collecting cases). “The second element requires the litigant to show that extraordinary circumstances were the cause of his untimeliness and made it impossible to file the document on time.” Booth, 914 F.3d at 1207 (simplified). Other courts have found extraordinary circumstances when circumstances are beyond the plaintiff's control. See, e.g., Monical, 2021 WL 228891, at *5; Malaer v. Kirkpatrick, No. 1:20-CV-00049-CL, 2022 WL 4536258, at *3 (D. Or. Sept. 28, 2022).
Another way to toll the statute of limitations in Oregon, under ORS 12.160, is if a person is insane “at the time the cause of action accrues ... the statute of limitation for commencing the action is tolled for so long as the person is insane.” Or.Rev.Stat. § 12.160(3). The term insane is not defined in the statute. This court defined the term for the purposes of Oregon statutes of limitations in Hoffman v. Keller, 193 F.Supp. 733, 735 (D.Or. 1961), and Oregon courts have adopted the definition. See Roberts v. Drew,- 105 Or.App. 251, 804 P.2d 503, 504 (Or. Ct. App. 1991). “The term ‘insane,' as used in statutes extending the time within which to commence an action, ‘has been held to mean such a condition of mental derangement as actually to bar the sufferer from comprehending rights which he is otherwise bound to know.'” Id. (quoting Hoffinan, 193 F.Supp. at 735) (internal citations omitted). Thus, even if a person is delusional and has only transitory periods of lucidity, the statute is not tolled if she is not delusional in her understanding that she has been harmed by the defendant. Gaspar v. Vill. Missions, 154 Or.App. . 286, 961 P.2d 286,290-91 (Or.Ct.App. 1998). .
Here, Plaintiff alleged many challenges and difficulties in filing his claim. The Court is sympathetic to the challenges of navigating federal court; representing yourself is not easy, and the Court does not wish to minimize the difficulty of that. However, in this case, Plaintiff has not shown any extraordinary circumstances that were beyond his control that prevented him from being able to file his complaint within the statute of limitations. Even though he clearly struggled with his health, cognition, and mental health, Plaintiff has not provided allegations to show that he was “insane” during the 2 years following his alleged incident with the Defendant, such that he was completely incapable of pursuing his claims and filing in a timely manner.
Pro se pleadings are held to less stringent standards than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 520-521 (1972). That is, the court should construe pleadings by pro se plaintiffs liberally and afford the plaintiffs the benefits of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (citation omitted). Additionally, a pro se litigant is entitled to notice of the deficiencies in the complaint and the opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. Id. Once it is clear that a litigant's complaint is barred, however, the Court cannot continue to grant leave to amend.
RECOMMENDATION
The deficiencies of Plaintiff s cause of action cannot be cured by amendment. His claim is barred by the statute of limitations. Therefore, this case should be dismissed with prejudice.
SCHEDULING
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is entered. Id. objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See FED. R. CIV. P. 72, 6.
Parties are advised that the failure to file objections within the specified time may waive . the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).