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Pesqueira v. Ryan

United States District Court, D. Arizona

September 18, 2018

Kevin Eric Pesqueira, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

          ORDER

          David G. Campbell Senior United States District Judge.

         Plaintiff Kevin Eric Pesqueira, who is currently confined at the Arizona State Prison Complex (ASPC)-Safford, in Safford, Arizona, brought this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court is Defendant Lohr's Motion for Judgment on the Pleadings, which Plaintiff opposes. (Docs. 118, 128.) The Court will grant Defendant Lohr's Motion for Judgment on the Pleadings and dismiss Defendant Lohr from the action.[1]

         I. Background

         Plaintiff initiated this action on July 24, 2015. (Doc. 1.) On screening of Plaintiff's First Amended Complaint (Doc. 11) pursuant to 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated Eighth Amendment medical care claims against Defendants Nurse Sedlar and John Doe #1 arising from their alleged failure to treat Plaintiff's injured right hand. (Doc. 12.) Plaintiff subsequently filed a Notice to Substitute Defendant Lohr for John Doe #1, and service was executed on Defendant Lohr on April 3, 2018. (Docs. 86, 100.)

         Plaintiff's original Complaint alleged that on an unspecified date between September 2013 and October 2013, Defendant “John Doe Nurse”-who was later identified as Defendant Lohr-denied Plaintiff treatment for his right hand that Plaintiff injured while playing basketball on September 25, 2013. (Doc. 1 at 5-6.)[2] Plaintiff alleged that an October 17, 2013 x-ray revealed broken fourth and fifth metacarpals on his right hand, and on November 4, 2013, he was informed that it was too late to perform surgery to fix the hand. (Id. at 6.) Plaintiff also alleged that “it was discovered on December 16, 2016 that [his] ring and pink[y] fingers no longer fully extended. (Id.) The Court determined that Plaintiff stated an Eighth Amendment medical care claim and gave Plaintiff 30 days to either provide John Doe Nurse's name or an explanation of what Plaintiff had done to learn John Doe Nurse's identity. (Doc. 7 at 8.)

         Plaintiff filed a First Amended Complaint on September 24, 2015, and again alleged that at some unspecified date between September 2013 and October 2013, Nurse “John Doe #1” denied him treatment for the injury he sustained to his right hand while playing basketball on September 25, 2013. (Doc. 11 at 6.) Plaintiff also alleged that after this encounter with John Doe #1, an October 17, 2013 x-ray revealed that Plaintiff's fourth and fifth metacarpals on his right hand were broken. (Id. at 7.) Plaintiff asserted that, due to the delay in treating his right hand, on November 4, 2013, Plaintiff was advised that “it was too late to receive the necessary surgical fixation” for his right hand, and on December 16, 2013, Plaintiff was informed that his ring and pinky fingers no longer fully extended. (Id.) The Court again determined that Plaintiff stated an Eighth Amendment medical care claim, but did not direct service on John Doe #1 at this time. (Doc. 12 at 8.)

         On November 7, 2017, Plaintiff filed a Motion to Substitute Defendant William Lohr in place of John Doe #1, and the Motion was granted on December 28, 2017. (Docs. 86, 90.) Service was executed upon Defendant Lohr on April 3, 2018. (Doc. 100.) Defendant Lohr moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) on the grounds that Plaintiff's claim against him is barred by the statute of limitations.

         II. Legal Standards

         A. Federal Rule of Civil Procedure 12(c)

         Rule 12(c) provides that a party may move for judgment on the pleadings “[a]fter the pleadings are closed-but early enough not to delay trial.” The standard for deciding a Rule 12(c) motion is the same as that applied to a Rule 12(b)(6) motion to dismiss. McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988). To survive a motion to dismiss, 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). All factual allegations set forth in the complaint are taken as true and construed in the light most favorable to the plaintiff. Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001) (citation omitted). Where the plaintiff is a pro se prisoner, the court must “construe the pleadings liberally and [] afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

         B. Statute of Limitations

         Section 1983 does not include its own statute of limitations. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). Therefore, federal courts apply the statute of limitations governing personal injury claims in the forum state, “along with the forum state's law regarding tolling, including equitable tolling, except to the extent any of these laws is inconsistent with federal law.” Butler v. Nat'l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014) (citation omitted). In Arizona, the limitations period for personal injury claims is two years. Marks v. Parra, 785 F.2d 1419, 1420 (9th Cir. 1986); see also Ariz. Rev. Stat. § 12-542 (providing that actions for personal injury must be commenced within two years after the cause of action accrues).

         Although the statute of limitations applicable to § 1983 claims is borrowed from state law, federal law continues to govern when a § 1983 claim accrues. Wallace v. Kato, 549 U.S. 384, 388 (2007); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). Under federal law, a claim accrues “when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996).

         For the defense of the running of the statute of limitations to be decided on a motion to dismiss, the untimeliness must clearly appear on the face of the complaint. See Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206-1207 (9th Cir. 1995) (“A motion to dismiss based on the running of the statute of limitations period may be granted only ‘if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to ...


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