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Benge v. Corizon Health LLC

United States District Court, D. Arizona

October 8, 2019

Robert Joseph Benge, Plaintiff,
v.
Corizon Health LLC, et al., Defendants.

          ORDER

          MICHAEL T. LIBURDI UNITED STATES DISTRICT JUDGE

         Plaintiff Robert Joseph Benge, who was formerly confined in the Arizona Department of Corrections (ADC), [1] brought this pro se civil rights action under 42 U.S.C. § 1983 against Corizon Health LLC; Dr. Julia Barnett; Nurse Practitioners (NP) Carrie Smalley and Melanie Louzon; Associate Deputy Wardens Brenda Burgess and David Summers; and Lieutenant Anita Hudson. (Docs. 20, 30, 46.) Before the Court are Benge's Emergency Motion for Preliminary Injunction (Doc. 38) and Hudson, Summers, and Burgess's (“ADC Defendants”) Motion to Dismiss (Doc. 29). The Court will deny both Motions.

         I. Background

         In Count One of his First Amended Complaint, Benge alleged an Eighth Amendment medical care claim. (Doc. 20 at 7.) He asserted that, following a neck injury in March 2014, NP Louzon failed to address Benge's shoulder and neck pain, failed to order tests, and ultimately discontinued pain medication despite his repeated requests for medical assistance and multiple incidents of losing consciousness. (Id.) Eventually, Benge had an MRI, which showed severe spinal cord compression, and he was admitted to the hospital and underwent emergency spinal cord surgery. (Id. at 7-8.) Benge alleged that when he returned to the prison, NP Smalley discontinued his morphine pain medication “cold turkey, ” which caused him to suffer withdrawal symptoms, and Smalley and Dr. Barnett then refused to prescribe him any other pain medication pursuant to a Corizon/ADC policy that prohibited pain medication even for verified medical needs. (Id.)

         In Count Two, Benge alleged an Eighth Amendment failure-to-protect claim. (Id. at 14.) Benge alleged that he suffered the neck injury discussed above in March 2014 after he was assaulted by intoxicated prisoners. (Id.) He alleged that he was assaulted again by intoxicated prisoners in April and June 2014. (Id. at 6.) Benge stated that he submitted grievances informing officials that he did not feel safe and that he had been assaulted numerous times by intoxicated prisoners. (Id. at 14.) Benge claimed that from January 2014 to November 2015, he repeatedly informed Burgess, Summers, and Hudson about the manufacture, sale, and consumption of prison made alcohol, or hooch; however, Defendants failed to take anything more than cosmetic and short-term measures in response to Benge's concerns. (Id. at 14-15.)

         In April 2019, the parties filed their pending Motions. Benge filed an Emergency Motion for Preliminary Injunction seeking various forms of relief related to medical care, including orders for Defendants to bring him to a neurosurgeon and nephrologist; orders for a back MRI and physical therapy; and orders for a wheelchair, cane, and ice. (Doc. 38.) ADC Defendants filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Benge's claims in Count Two are barred by the applicable statute of limitations. (Doc. 29.)

         II. Preliminary Injunction

         A former prisoner's claim for injunctive relief becomes moot following his release from custody. See Alvarez v. Hill, 667 F.3d 1061, 1063-64 (9th Cir. 2012) (former prisoner's declaratory and injunctive relief claims moot following release from custody); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (“[a]n inmate's release from prison while his claims are pending generally will moot any claims for injunctive relief relating to the prison's policies unless the suit has been certified as a class action”) (citing Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975)). Because Benge is no longer in custody, his request for injunctive relief in the form of specific medical care is moot, and his Emergency Motion for Preliminary Injunction will be denied.

         III. Statute of Limitations A. Governing Standard

         When the statute of limitations forms the basis of a motion to dismiss for failure to state a claim, the motion can be granted if the running of the statute is apparent on the face of the complaint, and “the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.” Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980); see also TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999.) Although courts will not normally look beyond the pleadings in resolving a Rule 12(b)(6) motion, Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), a “court may consider material that the plaintiff properly submitted as part of the complaint or, even if not physically attached to the complaint, material that is not contended to be inauthentic and that is necessarily relied upon by the plaintiff's complaint.” Id.

         Section 1983 does not include its own statute of limitations. TwoRivers, 174 F.3d at 991. Therefore, federal courts apply the statute of limitations governing personal injury claims in the forum state. Wilson v. Garcia, 471 U.S. 261, 280 (1985); TwoRivers, 174 F.3d at 991. In Arizona, the limitations period for personal injury claims is two years. TwoRivers, 174 F.3d at 991; 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, 174 F.3d at 991. 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.” TwoRivers, 174 F.3d at 991; Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996.) The Court must apply any state rule for tolling to actions brought under § 1983. Hardin v. Straub, 490 U.S. 536, 544 (1989); Johnson v. State of Cal., 207 F.3d 650, 653 (9th Cir. 2000); TwoRivers, 174 F.3d at 992. And in prisoner § 1983 cases, “the applicable statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process.” Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005).

         B. Discussion

         ADC Defendants argue that Benge's failure-to-protect claim arose on March 18, 2014, the date he was assaulted, or, at the latest, in November 2015, based on his allegation that ADC Defendants failed to protect him from January 2014 to November 2015. (Doc. 29 at 5.) ADC Defendants submit that Benge was therefore required to file his lawsuit by November 2017; however, he did not initiate this action until February 1, ...


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