Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Submitted Aug. 14, 1989.
D.Ariz.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
Appeal from the United States District Court for the District of Arizona, William P. Copple, District Judge, Presiding.
Before GOODWIN, Chief Circuit Judge, REINHARDT, Circuit Judge, and A. WALLACE TASHIMA, District Judge.
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.
This is a state prisoner's action against numerous state officials under 42 U.S.C. § 1983 for asserted deprivation of numerous constitutional rights. After leave to amend twice, the district court dismissed appellant's third amended complaint as untimely and for failure to state a claim. We affirm on all claims save one. We reverse on the claim for failure to render medical assistance.
We review dismissals under F.R.Civ.P. 12(b)(6) de novo, Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir.1988), including dismissals based on the bar of the statute of limitations. Galindo v. Stoody Co., 793 F.2d 1502, 1508 (9th Cir.1986).
Because a number of appellant's claims are barred by the statute of limitations, we need not engage in a detailed analysis of his allegations. Suffice it to state that he alleges he was beaten by prison guards and subjected to further deprivation of rights in 1983. The complaint herein was filed on February 17, 1987. Under Wilson v. Garcia, 471 U.S. 261, 280 (1985), the applicable statute of limitations for § 1983 claims is two years. Ariz.Rev.Stat. § 12-542. Also, prior to appellant filing his complaint, ARS § 12-502 had been amended to provide for the tolling of prisoners' claims only until the prisoner discovers or should have discovered the right to bring the action. ARS § 12-502(b).
Under these rules, appellant's claims for asserted deprivation of his constitutional rights in 1983 are untimely and were properly dismissed.
We do not address appellant's claim that ARS § 12-502(A), which tolls the statute of limitations for persons of unsound mind, applies here, because that claim was not raised below. E.g., Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985) (court will not consider issues raised for the first time on appeal).
With respect to claims which are alleged to have occurred within the limitations period, we conclude that all but one fail to state claims on which relief can be granted. None, save the claim asserting denial of medical care, rise to the level of a constitutional deprivation. Construing, as we must, the claim of failure to render medical care most liberally in favor of the pleader, e.g., Baker v. McNeil Island Corrections Center, 859 F.2d 124, 127 (9th Cir.1988), we cannot say that, under these allegations, appellant can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). We conclude that appellant has sufficiently given notice of an Eighth Amendment claim of deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir.1986), cert. denied, 481 U.S. 1069 (1987).
Of course, appellant has no standing to assert any claim that the constitutional rights of his wife, or others, have been violated.
Honorable A. Wallace Tashima, United States District Judge for the Central District of California, sitting by designation.
The only defendants against whom this claim is asserted are Deputy Warden Gaspar, Drs. Goodwin and Catraros, Nurse Richards and Physician's Assistant Moors.
The judgment of the district court is AFFIRMED in all respects, except with respect to the claim alleging the failure to render medical assistance. With respect to the latter claim, the judgment is REVERSED and the matter REMANDED for further proceedings consistent with this Memorandum.
FN* The panel finds this case appropriate for submission without oral argument pursuant to F.R.App.P. 34(a) and 9th Cir.R. 34-4.