Mulholland v. Holliday

Full title: JOHN MULHOLLAND, Plaintiff - Appellant, v. LEE HOLLIDAY; THOMAS LUTZ…

Court: United States Court of Appeals, Ninth Circuit

Date published: Feb 22, 2006

No. 04-17105 (9th Cir. Feb. 22, 2006)

Opinion

JOHN MULHOLLAND, Plaintiff - Appellant, v. LEE HOLLIDAY; THOMAS LUTZ; RODNEY NORRISH; WILLIAM MCKINLEY; PATRICIA STAPLER; ELIZABETH BURNETT; ELIZABETH MCGHEE; GARY PINKSTAFF; JOHN WOHLER; TERRY STEWART, all sued in individual and official capacities, Defendants - Appellees. No. 04-17105 United States Court of Appeals, Ninth Circuit February 22, 2006

NOT FOR PUBLICATION

Argued and Submitted December 5, 2005 San Francisco, California

Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding D.C. No. CV-02-00105-FJM

Before: KOZINSKI and McKEOWN, Circuit Judges, and HOGAN^**, District Judge.

MEMORANDUM ^*

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

Plaintiff§s complaint alleges wrongful conduct within the applicable two-year statute of limitations period. See Ariz. Rev. Stat. § 12-542; Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir. 2004). §In civil rights cases where the plaintiff appears pro se, the court must construe the pleadings liberally and must afford the plaintiff the benefit of any doubt.§ Karim-Panahi v. Los Angeles Police Dep§t, 839 F.2d 621, 623 (9th Cir. 1988).

In his handwritten complaint, filed in 2002 and amended in 2003, plaintiff states that he began seeking medical care immediately after entering prison in 1993. Six pages later, he alleges that defendants §have violated§ his constitutional rights over a five-year period. The district court read these two paragraphs together as alleging that this unconstitutional conduct commenced in 1993 and continued for five years until 1998, which would have required Mulholland to file a complaint no later than 2000.

This is a plausible reading of the complaint, but not the only one. When there are two plausible readings of a pro se complaint, we pick the one more page 3 favorable to the plaintiff. Elsewhere in his complaint, plaintiff seems to allege that the wrongful conduct is still ongoing. §Over a five (5) year period, the named defendants have refused to see plaintiff or address his serious medical needs, § and he continues to endure extreme pain as a result of defendants§ deliberate indifference . (Emphasis added.) And plaintiff claims that defendants§ §actions in failing to provide adequate medical care for the plaintiff violated, and continues to violate, the plaintiffs [sic] rights.§ (Emphasis added.) The complaint thus pleads an ongoing violation within the limitations period.

Because plaintiff alleges conduct within the limitations period, we need not address his arguments that his complaint is rendered timely by Arizona§s saving statute or that he is entitled to equitable tolling.

On remand, the district court may, in its discretion, order plaintiff to amend his complaint to plead his allegations with greater specificity. This will allow the district court to determine in the first instance whether plaintiff has exhausted administrative remedies as to alleged wrongdoing within the limitations period. See 42 U.S.C. § 1997e(a).

REVERSED AND REMANDED.