Opinion
Case No. 6:20-cv-231-JR
08-10-2020
DAVID H. BROWN, Plaintiff, v. JEFF PREMO, Oregon State Penitentiary Facility Warden; Oregon State Penitentiary Facility Medical Doctors Sued in their individual and official capacities, et al, Defendants.
FINDINGS AND RECOMMENDATION :
Pro se plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging defendants refused to provide him with adequate medical care for hepatitis C resulting in cancer. Defendants move to dismiss the complaint (ECF 15). For the reasons stated below, the motion should be granted.
ALLEGATIONS
Plaintiff initiated this action on February 12, 2020. Plaintiff alleges that on May 15, 2013, while incarcerated at the Snake River Correctional Institution, he filed several health service kytes regarding treatment for hepatitis C. Complaint (ECF 2) at p. 5. Plaintiff asserts SRCI medical staff informed him that his hepatitis C was "extremely bad and that he needed to receive treatment as soon as possible." Id. Plaintiff alleges he was then transferred to the Oregon State Penitentiary (OSP). Id.
Plaintiff alleges OSP medical staff failed to conduct any tests and he was told he did not need treatment. Id. Plaintiff alleges he filed a health service kyte several weeks later asking OSP to request his test results from SRCI, but he was told again he did not require treatment. Id.
Plaintiff asserts he was denied hepatitis treatment at OSP for four years and as a result he developed cancer. Plaintiff alleges he was transferred back to SRCI on September 10, 2017, and was again informed his hepatitis C was:
extremely bad and he needed to immediately start Hep C treatment which he did but due to the delay of medical treatment by OSP medical staff/Superintendent plaintiff was caused to have cancer and was put under extreme pain and suffering. Plaintiff is a subject of cruel and unusual punishment and was also subjected to deliberate indifference to his serious medical need which caused further pain and suffering also to have cancer.Id. at pp. 5-6.
DISCUSSION
Defendants moved to dismiss this case on May 13, 2020. The Court allowed plaintiff until June 15, 2020 to respond. On June 10, 2020, plaintiff moved for an extension of time to respond which the Court granted and extended the response date to July 15, 2020. To date, plaintiff has not filed any response.
Defendants contend the complaint must be dismissed because the alleged actions forming the basis of plaintiff's claim for violation of his Eighth Amendment rights pursuant to 42 U.S.C. § 1983 fall outside the applicable statute of limitations.
The applicable statute of limitations for actions brought pursuant to 42 U.S.C. § 1983 is the forum state's statute of limitations for personal injury actions. Carpinteria Valley Farms, Ltd. v. Cty. of Santa Barbara, 344 F.3d 822, 828 (9th Cir. 2003) (citing Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 2001)). In Oregon, the statute of limitations for personal injury actions is two years from the date the injury is discovered. Or. Rev. Stat. § 12.110(4) (applicable to injury arising from medical care). Therefore, the applicable statute of limitations in this case is two years.
The period of limitations in that statute commences from the earlier of two possible events: (1) the date of plaintiff's actual discovery of injury; or (2) the date when a person exercising reasonable care should have discovered the injury, including learning facts that an inquiry would have disclosed. Greene v. Legacy Emanuel Hosp. & Health Care Ctr., 335 Or. 115, 123, 60 P.3d 535, 539 (2002).
Plaintiff alleges discovery of his serious hepatitis C condition on or about May 16, 2013. On September 10, 2017, plaintiff asserts he discovered the cancer that allegedly resulted from failure to treat his hepatitis C. Accordingly, to be timely, plaintiff needed to commence his action on or before September 10, 2019. A section 1983 action is commenced in federal district court for purposes of the statute of limitations when the complaint is filed. Sain v. City of Bend, 309 F.3d 1134, 1138 (9th Cir. 2002). As noted above, plaintiff initiated this action on February 12, 2020. Therefore, plaintiff failed to timely commence this action. Because the action is time-barred, it should be dismissed.
Plaintiff's claim against the Oregon State Penitentiary Facility Medical Doctors, Dr. John Doe, and Nurse Jane Doe should be dismissed as a matter of law, as those defendants have not been identified or served. Pursuant to Fed. R. Civ. P. 4(m), a defendant must be served with the summons and complaint within 90 days after the complaint is filed, meaning plaintiff must name the Doe defendants and serve them within those 90 days in order to be in compliance with the rule. See Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (N.D. Ill. 1995). Because more than 90 days have passed, these unserved defendants should be dismissed.
CONCLUSION
Defendants' motion to dismiss (ECF 1 5) should be granted and this action should be dismissed. A judgment should enter.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
DATED this 10th day of August, 2020.
/s/ Jolie A. Russo
JOLIE A. RUSSO
United States Magistrate Judge