ALLISON CLAIRE

FINDINGS AND RECOMMENDATION

Pending before the court is plaintiff's motion to amend the complaint, ECF No. 90. The court held a hearing on this matter on April 2, 2014. Carter White and certified law students Charlie Chinn and Jaweon Lee, all of the University of California at Davis King Hall Civil Rights Clinic, appeared for plaintiff. Deputy Attorney General Diana Esquivel appeared for the defendants. Supplemental briefs were submitted after the hearing at the court's direction. Upon review of the motion and the supporting documents, and good cause appearing, THE COURT FINDS AS FOLLOWS:

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is a state prisoner seeking relief pursuant to 42 U.S. § 1983. The initial complaint was filed in pro per on October 1, 2009, and an amended complaint was filed on May 12, 2010 and subsequently served on defendants Mesa, Turner and Ward. The action was dismissed for administrative non-exhaustion on April 7, 2011. ECF Nos. 27, 31. The King Hall Civil Rights Clinic entered the case for the first time to bring an unsuccessful motion to amend the judgment, and thereafter represented plaintiff on appeal. The Ninth Circuit reversed and remanded the case on November 28, 2012. ECF No. 46 (mandate).

Second Amended Complaint

On remand, plaintiff filed a second amended complaint that stated three causes of action against Mule Creek State Prison correctional personnel Mesa, Turner and Ward: (1) deliberate indifference to plaintiff's serious medical needs in violation of the Eighth Amendment; (2) deliberate indifference to plaintiff's right to safe and adequate shelter, i.e., failure to protect; and (3) and supervisory liability as to Lt. Ward. ECF No. 53. The second amended complaint survived a motion to dismiss for failure to state a claim, ECF Nos. 60, 67, and plaintiff was permitted to substitute a successor-in-interest for deceased defendant Ward, ECF Nos. 71, 77.

The second amended complaint (SAC) alleges in sum as follows: Plaintiff is a Pakistani national with very limited proficiency in English, who suffers from numerous serious medical conditions including chronic kidney disease, traumatic brain injury, a spinal disc hernia, incontinence, coronary artery disease, hypertension, high cholesterol, and a history of seizures, stroke, and epilepsy. Plaintiff's mobility is impaired, and he uses a walker and a cane. He wears a special vest identifying him as hearing-impaired. He wears special shoes for medical reasons and uses a medically-required double mattress. Because of his incontinence, plaintiff requires ready access to a toilet.

On August 17, 2006, plaintiff was issued a Disability Placement Program Verification ("DPPV"), stating that he was mobility-impaired due to a permanent disability, and subject to housing restrictions of a lower bunk, no stairs, and no triple bunk. On October 8, 2008, plaintiff was issued an accommodation chrono specifying that he was to be permanently housed in a ground floor cell, bottom bunk. On December 2, 2008, defendant Mesa, Building Officer in "B" Facility, told plaintiff that he was being moved from his cell to an emergency bunk ("E-bed") in open dormitory housing, which had forty E-beds but only two toilets and one urinal. Plaintiff told defendant Mesa that he had a medical chrono showing he was to be housed in a ground floor cell, and objected to the move on safety and medical grounds. Mesa nonetheless insisted on moving plaintiff, who then said he would rather go to administrative segregation (ad seg) than to the open dormitory. Plaintiff was taken to a holding area and informed by Sgt. Turner that he was being moved to the dormitory. When plaintiff showed defendant Turner his medical chrono, Turner stated, "I don't care" and told plaintiff he would be sent to ad seg and written up for disobeying a direct order. Plaintiff was charged with a rules violation (known as a CDC 115, after the rules violation report form) and confined in ad seg for a week. He was issued a second rules violation report for his continued refusal to move, and then was moved to a triple bunk in the open dorm setting.

In the open dormitory plaintiff did not have the medically necessary sleeping accommodations. His bed on the bottom of the triple-bunk was higher and narrower than the bunk in his cell, the vertical space between the beds was smaller, and it was open on both sides rather than one. The bunk lacked the double mattress that plaintiff required for accommodation of his disability. As a result of these deficiencies, plaintiff fell from his bed and broke his wrist. His bunk was also 75 feet away from the nearest urinal. Because this distance made it difficult for plaintiff to access the urinal, he repeatedly urinated in his clothing. As a result plaintiff suffered humiliation, anxiety and emotional distress. His access to necessary medication was also impaired in the dorm because of the misconduct of other inmates, who repeatedly moved and sometimes stole his personal property. Plaintiff seeks money damages. SAC, ECF No. 53.

Proposed Third Amended Complaint

Plaintiff moves to amend, seeking to add nine new defendants, continue against the three successors-in-interest to defendant Ward, and dismiss defendants Turner and Mesa. Motion to Amend (MTA), ECF No. 90 at 3; Proposed Third Amended Complaint (TAC), ECF No. 90-1. The TAC sets forth four causes of action: (1) violation of the Eighth Amendment by deliberate indifference to plaintiff's medical care; (2) violation of the Eighth Amendment by deliberate indifference to plaintiff's right to safe and adequate shelter; (3) custodial supervisory liability under § 1983 for acts of subordinate custodial staff; (4) medical supervisory liability under § 1983 for acts of subordinate health care staff. See TAC, ECF No. 90-1.

The nine proposed new defendants are: (1) Correctional Lieutenant Rogel, who ordered plaintiff released from ad-seg to a triple-bunk E-bed; (2) Facility Captain L. Olivas, who included plaintiff in a list of inmates eligible for E-beds and later denied an appeal of plaintiff's E-bed assignment; (3) Associate Warden H.M. Lackner, who approved denial of plaintiff's appeal; (4) Correctional Counselor II E. Lamb, who reviewed and approved plaintiff's E-bed assignment and later denied an appeal; (5) Dr. R.P. Galloway, who signed a Comprehensive Accommodation Chrono (CAC) ordering ground floor cell housing for medical reasons, but later crossed out the word "cell" in light of the housing policy and contrary to plaintiff's medical needs; (6) Dr. W. Hashimoto, who also signed CACs with the word "cell" crossed out from the "ground floor cell" accommodation; (7) Dr. R.M. Hawkins, who also signed CACs with the word "cell" crossed out from the "ground floor cell" accommodation; (8) Health Care Manager Dr. S. Heatley and (9) Chief Medical Officer Dr. C.J. Smith, both of whom endorsed and promulgated a special housing assignment policy that encouraged the word "cell" to be stricken from CACs ordering ground floor cell housing, in order to permit E-bed assignments that would otherwise be impermissible for medical reasons.

Plaintiff represents that he learned the facts regarding the involvement of these nine individuals during discovery after the case was remanded to this court from the Ninth Circuit.

LEGAL STANDARDS

The Federal Rules provide that leave to amend pleadings "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). "[T]his policy is to be applied with extreme liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987)).

In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be "freely given." Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.

Of the factors the district court must consider, prejudice to the opposing party carries the greatest weight. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186-87 (9th Cir.1987). Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

Undue delay, without more, is insufficient to justify denying a motion to amend. DCD Programs, 833 F.3d at 186. The futility of amendment, on the other hand, can justify denial of leave to amend even in the absence of prejudice. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (citing Outdoor Systems, Inc. v. City of Mesa, 887 F.2d 604, 614 (9th Cir. 1993)); Steckman v. Hart Bewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998) ("Although there is a general rule that parties are allowed to amend their pleadings, it does not extend to cases in which any amendment would be an exercise in futility, or where the amended complaint would also be subject to dismissal. . .") (citations omitted). Amendment is futile, inter alia, where the applicable statute of limitations bars the proposed amendments. See Deutsch v. Turner Corp., 324 F.3d 692, 718 n.20 (9th Cir. 2003); Platt Elec. Supply, Inc. v. Eoff Elec., Inc., 522 F.3d 1049, 1060 (9th Cir. 2008).

DISCUSSION

I. Overview

Defendants oppose the motion to amend on grounds that the claims against the nine additional defendants are time-barred, rendering amendment futile. Because the timeliness issue is dispositive, defendants' independent arguments regarding prejudice and other Foman factors need not be addressed.

II. Statute Of Limitations

Actions brought pursuant to 42 U.S.C. § 1983 are governed by the forum state's statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 265 (1985); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). In California, a two-year statute of limitations applies. See Cal. Code Civ. P. § 335.1; Jones, 393 F.3d at 927. The federal court also apples the forum state's law regarding tolling, including equitable tolling when not in conflict with federal law. Hardin v. Straub, 490 U.S. 536, 537-39 (1989); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999), cert. denied, 529 U.S. 1117 (2000). California provides that when a litigant is incarcerated, the applicable limitations period is tolled for two years on grounds of "disability." Cal. Code Civ. P. § 352.1(a). This tolling provision operates to delay the running of the limitations period, effectively extending the two-year personal injury limitations period to four years for inmates. See Carlson v. Blatt, 87 Cal. App. 4th 646, 650 (2001) (imprisonment tolls running of limitations period for two years from accrual of cause of action); Fink, 192 F.3d at 914 (same); Ellis v. City of San Diego, 176 F.3d 1183, 1189 (9th Cir. 1999) (same). Accordingly, California inmates have a total of four years from the accrual of a cause of action to file a complaint.

The Ninth Circuit has held that prisoners are entitled to equitable tolling of the statute of limitations while completing the mandatory exhaustion process. Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005). In this case, the parties agree that plaintiff exhausted his administrative remedies when his appeal was denied at the Director's level on May 28, 2009. Assuming the four-year total limitations period began to run at that time, it expired on May 28, 2013. The motion to amend, with proposed third amended complaint, was filed on February 18, 2014 -almost nine months late.

The "relation back" provision of Fed. R. Civ. P. 15(c) does not apply to § 1983 claims. Merritt v. County of Los Angeles, 875 F.2d 765, 768 (9th Cir. 1989). Rather, state law determines whether an amendment outside the limitations period may be deemed timely. Id.; see also Wilson, 471 U.S. at 269 (application of limitations rules governed by state law). Plaintiff presents several theories for the timeliness of his claims against newly-added defendants. The court addresses these in turn.

III. Substitution Of Named For Previously Unnamed Defendants

Under California law, a plaintiff who names a Doe defendant in a complaint has three years to discover the defendant's identity and amend the complaint accordingly. Lindley v. General Elec. Co., 780 F.2d 797, 799 (9th Cir. 1986); Cal. Code Civ. Proc. §§ 474, 583.210. Cal. Code Civ. Proc. § 474 provides that "[w]hen the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint … and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly. . . ." When a defendant is brought in by amendment substituting his name for a Doe defendant pursuant to § 474, he "is considered a party to the action from its commencement for purposes of the statute of limitations." Barrows v. American Motors Corp., 144 Cal. App. 3d 1, 7 (1983). In other words, amendments to substitute a named for a previously unnamed defendant relate back to the original complaint.

This state law regime applies in federal court even when local rules prevent the filing of an initial complaint naming Doe defendants, as long as plaintiff satisfies "the substantive criteria of California's limitations scheme that would otherwise have been satisfied through 'Doe' allegations." Rumberg v. Weber Aircraft Corp., 424 F. Supp. 294, 298 (C.D. Cal. 1976). The Ninth Circuit has adopted Rumberg as the law of the circuit. Lindley, 780 F.2d at 800. Under Lindley and Rumberg, an amendment substituting a named defendant for a previously unnamed defendant is timely if (1) the initial complaint either named fictitious defendants or alleged that the identities of certain defendants was unknown to plaintiff at the time of filing, and (2) the amendment is made within three years. See Lindley, 780 F.2d at 801-802; Rumberg, 424 F. Supp. at 298.

Plaintiff contends that the nine new defendants should be considered parties to the action from its commencement for purposes of the statute of limitations, pursuant to Cal. Code Civ. Proc. § 474. The argument fails for the simple reason that plaintiff never named Doe defendants or otherwise indicated in a complaint filed within the limitations period that he wished to proceed against defendants whose identities were unknown to him. The § 474 substitution procedure has no application where a plaintiff seeks to add new defendants, rather than identifying defendants who were previously unnamed or fictitiously named. See Kralow Co. v. Sully-Miller, 168 Cal. App. 3d 1029, 1035-36 (1985) (relation back doctrine inapplicable where plaintiff attempts to relate amendments naming new defendants back to complaint that did not make allegations against those defendants or name any Doe defendants); Anderson v. Allstate, 630 F.2d 677, 683 (9th Cir. 1980) ("Under California law, if a defendant is added to an amended complaint as a new defendant, and not as a Doe defendant, the amendment does not relate back to the time of the original complaint.").

Plaintiff relies on the Ninth Circuit's recognition that "California's policy in favor of litigating cases on their merits requires that the fictitious name statute be liberally construed." Lindley, 780 F.2d at 801. Liberality of construction, however, does not mean the wholesale suspension of standards or the application of the statute outside the context it was devised to address. See Fireman's Fund Ins. Co. v. Sparks Const. Inc., 114 Cal. App. 4th 1135, 1142-43 (2004) (§ 474 is to be liberally construed, but its requirements are mandatory). Strict technical compliance with § 474's pleading requirements cannot be expected of a federal litigant because of the differences between state and federal practice. Rumberg, 424 F. Supp. at 298. The benefit of the statute is nonetheless limited to circumstances in which a plaintiff seeks to substitute a named defendant for a previously unnamed defendant. Fireman's Fund, 114 Cal. App. 4th at 1142-43 (§ 474 does not authorize relation back of Doe amendments where operative complaint lacks Doe allegations).

Plaintiff's third amended complaint does not identify defendants who were previously unnamed or fictitiously-named, it adds entirely new defendants. The operative second amended complaint does not state causes of action against the individuals plaintiff now seeks to add, or allege that plaintiff was ignorant of their names. See Fireman's Fund, 114 Cal. App. 4th at 1142-43. Accordingly, plaintiff has not satisfied "the substantive criteria of California's limitations scheme that would otherwise have been satisfied through 'Doe' allegations." Rumberg, 424 F. Supp. at 298. The relation back rule codified in § 474 therefore cannot save plaintiff's claims against the new defendants from application of the statute of limitations.

In the context of the § 474 issue, the parties debate at length whether plaintiff was actually ignorant of the new defendants and their involvement in plaintiff's E-bed assignment at the time the action was commenced and/or at the times the complaint was previously amended. Actual ignorance of the identity of Doe defendants, or of the facts giving rise to a cause of action against them, is an additional requirement for application of § 474. Rumberg, 424 F. Supp. at 297; Fireman's Fund, 114 Cal. App. 4th at 1143. Because the statute does not apply for the reasons previously explained, however, the debate about when plaintiff knew or could have discovered the facts giving rise to his claims against the various new defendants is not germane to the § 474 analysis. The California courts' broad interpretation of § 474's ignorance requirement, see Fuller v. Tucker, 84 Cal. App. 4th 1163, 1170 (2000), does not expand the statute's reach beyond the fictitious-defendant context.

IV. California's "Saving Statute"

Plaintiff argues next for application of Cal. Code Civ. P. § 355, which provides for commencement of a new action within one year of reversal on appeal. Section 355 provides as follows:

Reversal of judgment; limitation on new action
If an action is commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal other than on the merits, a new action may be commenced within one year
after the reversal.

In Wood v. Elling Corp., 20 Cal. 3d 353, 360-62 (1977), the California Supreme Court held that the saving statute provides a renewed one-year limitations period in two situations. The first is where a judgment for plaintiff is reversed on appeal, as the statutory language contemplates. The second situation, first recognized in Bollinger v. National Fire Ins. Co., 25 Cal. 2d 399 (1944), is where (1) the trial court erroneously granted a nonsuit; (2) dilatory tactics on the part of the defendant had prevented disposition of the first action in time to permit timely filing of a second action; and (3) plaintiff was diligent in pursuing his remedies. Wood, 20 Cal. 3d at 361; see also Allen v. Greyhound Lines, Inc., 656 F.2d 418, 421 (9th Cir. 1981). Plaintiff contends that the Ninth Circuit's reversal of this court's previous dismissal of the action brings this case within the scope of the savings statute.

There are several problems with this theory, only one of which requires discussion. Because the appeal in this case did not involve reversal of a judgment for plaintiff, the saving statute applies only if all three of the Wood/Bollinger factors are satisfied. Plaintiff cannot satisfy the second such factor, that defendant's dilatory tactics caused the statute of limitations to expire before plaintiff could timely file his claims against the new defendants. The record in this case is devoid of any evidence that defendants engaged in dilatory tactics that dragged out litigation of the administrative exhaustion issue until after the statute of limitations had run. Defendants' motion to dismiss was brought only six weeks after service of the complaint, ECF No. 25, and was decided with unusual alacrity. There has been no showing that defendants unduly extended the appellate process. Without a showing of dilatory conduct on defendants' part, plaintiff's own diligence does not entitle him to the benefit of Cal. Code Civ. P. § 355. Accordingly, this argument fails.

V. Equitable Tolling

As previously noted, the four-year limitations period applicable to this prisoner §1983 action includes a two-year period of equitable tolling that California provides by statute for the "disability" of incarceration. See Ellis v. City of San Diego, 176 F.3d at 1189. As also noted, the time during which plaintiff was pursuing his administrative remedies is excluded from the calculation of the limitations period. See Brown v. Valoff, 422 F.3d at 942-43. As the result of these equitable principles, plaintiff was free (at least as far as the statute of limitations is concerned) to add new claims and new defendants for four years from the conclusion of his administrative exhaustion process. The parties agree that plaintiff's exhaustion process concluded on May 28, 2009. The limitations period accordingly expired on May 28, 2013, nine months before the third amended complaint was presented to the court, absent an additional and independent basis for tolling.

Plaintiff argues that he is entitled to additional equitable tolling under Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131 (9th Cir. 2001) (en banc) and Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993). In both Daviton and Cervantes, the court applied California's equitable tolling doctrine to exclude from the limitations period the time that non-prisoner plaintiffs were pursuing administrative actions and/or state court proceedings against the defendants. Plaintiff Akhtar gains nothing by invoking California's tolling rule for prior proceedings, because the Ninth Circuit independently provides equitable tolling in prisoner cases for the time the inmate is exhausting his administrative remedies as required by the Prison Litigation Reform Act. Brown, 422 F.3d at 942-43. The court has already excluded that time from the limitations period as the parties agree is proper. That exclusion is not enough to render the claims against the nine new defendants timely.

Plaintiff also seeks additional equitable tolling for the time that the case was on appeal. The only authority he provides for equitable tolling pending appeal is Cal. Code Civ. P. § 355, which does not apply for the reasons explained above. An appeal is not a separate or parallel proceeding within the meaning of the California equitable tolling rule recognized in Daviton and Cervantes. Nor is appeal of the district court's dismissal for non-exhaustion part of the administrative exhaustion process for which tolling is authorized under Brown. Plaintiff cites no California statute or case law that provides for equitable tolling during the pendency of an appeal outside the § 355 context. The court's independent research has identified no such authority.

Plaintiff relies heavily on the general policy justifications for equitable tolling, noting the Ninth Circuit's recognition that "[e]quitable tolling under California law 'operates independently of the literal wording of the Code of Civil Procedure' to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness." Jones v. Blanas, 393 F.3d at 928 (quoting Lantzy v. Centex Homes, 31 Cal. 4th 363, 370 (2003)). Plaintiff contends that it would be fair and just to toll the statute of limitations because he did not learn the facts linking the nine new defendants to his injuries until discovery was conducted following remand. Plaintiff does not, however, identify any California authority that specifically provides for equitable tolling outside the particular contexts previously discussed (disability or pursuit of relief in another forum). Plaintiff's reliance on federal standards for equitable tolling in contexts other than § 1983, including habeas corpus proceedings, is unavailing because California law governs the timeliness inquiry in this § 1983 case. See Hardin v. Straub, 490 U.S. at 538-39.

The court sympathizes with plaintiff's situation. He initiated this action in pro per. Counsel entered the case after judgment had been entered against plaintiff, and obtained a reversal on appeal. Upon remand, plaintiff did not undertake discovery regarding the merits of the case until after amending the complaint, defeating a motion to dismiss, successfully moving to substitute successors-in-interest for a deceased defendant, and conducting discovery into the identities of the successors-in-interest. Thereafter, the court sua sponte ordered a Pretrial Scheduling Conference under Fed. R. Civ. P. 16 and Local Rule 240, and subsequently issued a Scheduling Order on August 26, 2013. ECF No. 85. It was during the course of discovery pursuant to the August 2013 Scheduling Order that plaintiff discovered the new claim and new defendants presented in the proposed Third Amended Complaint. Discovery thus occurred, and the facts linking additional defendants to plaintiff's injuries were identified, after the statute of limitations had already expired.

It must be noted, however, that nothing prevented plaintiff from conducting investigation, including a review of petitioner's central file and medical file, or seeking discovery or a Rule 26(f) conference, prior to expiration of the limitations period. Promptly upon remand, prior to the expiration of the limitations period, plaintiff was provided the opportunity to amend his complaint. ECF No. 47. That was the time for plaintiff to consider the application of the statute of limitations and to conduct any inquiries necessary to develop and plead his case.

The unfortunate effect on plaintiff of this procedural history does not entitle him to equitable tolling under California law. As the California Supreme Court has acknowledged:

[A] statute of limitations. . . operates conclusively across-the-board. It does so with respect to all causes of action, both those that do not have merit and also those that do. That it may bar meritorious causes of action as well as unmeritorious ones is the price of the orderly and timely processing of litigation - - - a price that may be high, but one that must nevertheless be paid.

CONCLUSION

For all the reasons explained above, the court concludes that amendment is futile because the claims against the new defendants are untimely. Accordingly, IT IS HEREBY RECOMMENDED that plaintiff's motion to file a third amended complaint (ECF No. 90) be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that 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).

__________

ALLISON CLAIRE

UNITED STATES MAGISTRATE JUDGE