1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10

ALPHONSO R. CLARK,

11 Case No. 21-06512 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL v. 13

14 NAPA STATE HOSPITAL, et al., 15 Defendants. 16 17

18 Plaintiff, a state prisoner currently housed at the Napa State Hospital (“NSH”), filed 19 the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against NSH and medical 20 staff. Dkt. No. 1. The matter was originally assigned to the Honorable Magistrate Judge 21 Susan van Keulen, who ordered the matter be reassigned to a district judge. Dkt. No. 4. 22 The matter was reassigned to the Undersigned on September 2, 2021. Dkt. No. 5. 23 Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a separate 24 order. Dkt. No. 6. 25 26 DISCUSSION 27 A. Standard of Review 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 4 upon which relief may be granted or seek monetary relief from a defendant who is immune 5 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 6 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 8 elements: (1) that a right secured by the Constitution or laws of the United States was 9 violated, and (2) that the alleged violation was committed by a person acting under the 10 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 11 B. Plaintiff’s Claims 12 Plaintiff claims that Defendants misdiagnosed an abscess as a fistula sometime in 13 2016, and he had to have two operations “because of it.” Dkt. No. 1 at 1-2. Plaintiff 14 claims the misdiagnosis was due to medical malpractice by Dr. Chough. Id. at 2. Plaintiff 15 claims that when he asked Chief Medical Doctor Romono to refer him to another surgeon 16 for a second opinion, he refused. Id. Plaintiff states that Nurse Rosa, a wound care 17 specialist, believed he had a fistula rather than an abscess “but was in fear of losing her job 18 if going against Dr. Chough.” Id. at 3. Plaintiff claims that the Medical Board of 19 California refused to take action against Dr. Chough for medical malpractice in September 20 2018, and that the Board was wrong for not reprimanding Dr. Chough. Id. at 1-2. For 21 relief, Plaintiff seeks a second medical opinion, for Dr. Chough to be reprimanded, and 22 damages. Id. at 3. 23 The complaint fails to state a cognizable claim. Deliberate indifference to a 24 prisoner’s serious medical needs violates the Eighth Amendment’s proscription against 25 cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin 26 v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on other grounds by WMX 1 determination of “deliberate indifference” involves an examination of two elements: the 2 seriousness of the prisoner’s medical need and the nature of the defendant’s response to 3 that need. See McGuckin, 974 F.2d at 1059. But nowhere in the complaint does Plaintiff 4 claim that any Defendant acted with deliberate indifference. Rather, he repeatedly states 5 that Defendants misdiagnosed him and denied him a second opinion, which lead to 6 inadequate treatment. See supra at 2. As Plaintiff alleges, these actions may indicate 7 medical malpractice. However, a claim of medical malpractice or negligence is 8 insufficient to make out a violation of the Eighth Amendment. See Toguchi v. Chung, 391 9 F.3d 1051, 1060 (9th Cir. 2004); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); 10 Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981); see, e.g., McGuckin, 974 F.2d at 11 1059 (mere negligence in diagnosing or treating a medical condition, without more, does 12 not violate a prisoner’s 8th Amendment rights). There is no allegation suggesting that 13 Defendants’ actions were deliberate rather than merely negligent to implicate the Eighth 14 Amendment. 15 Even if Plaintiff were able to state an Eighth Amendment claim, his claim would be 16 untimely. Section 1983 does not contain its own limitations period. The appropriate 17 period is that of the forum state’s statute of limitations for personal injury torts. See 18 Wilson v. Garcia, 471 U.S. 261, 276 (1985), superseded by statute on other grounds as 19 stated in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 377-78 (2004); TwoRivers v. 20 Lewis, 174 F.3d 987, 991 (9th Cir. 1999); Elliott v. City of Union City, 25 F.3d 800, 802 21 (9th Cir. 1994). In California, the general residual statute of limitations for personal injury 22 actions is the two-year period set forth at California Civil Procedure Code § 335.1 and is 23 the applicable statute in § 1983 actions. See Maldonado v. Harris, 370 F.3d 945, 954 (9th 24 Cir. 2004); see also Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999) (limitations period 25 for filing § 1983 action in California governed by residual limitations period for personal 26 injury actions in California, which was then one year and was codified in Cal. Civ. Proc. 1 period, which is now two years; enacted in 2002). 2 A federal court must give effect to a state’s tolling provisions. See Hardin v. 3 Straub, 490 U.S. 536, 543-44 (1989); Marks v. Parra, 785 F.2d 1419, 1419-20 (9th Cir. 4 1986). In California, this includes tolling the statute of limitations during imprisonment 5 and while criminal charges are pending. The statute of limitations begins to run 6 immediately after the recognized disability period ends. See Cabrera, 159 F.3d at 378-79 7 (following California Law). 8 California Civil Procedure Code section 352.1 recognizes imprisonment as a 9 disability that tolls the statute of limitations when a person is “imprisoned on a criminal 10 charge, or in execution under the sentence of a criminal court for a term of less than for 11 life.” See Cal. Civ. Proc. Code § 352.1(a). The tolling is not indefinite, however; the 12 disability of imprisonment delays the accrual of the cause of action for a maximum of two 13 years. See id.; Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999). Thus, an inmate has 14 four years to bring a § 1983 claim for damages in California, i.e., the regular two year 15 period under section 335.1 plus two years during which accrual was postponed due to the 16 disability of imprisonment. 17 Here, Plaintiff claims that the alleged misdiagnosis occurred sometime in 2016. See 18 supra at 2. Assuming Plaintiff is entitled to the tolling provision for incarceration, he had 19 a total of four years since his misdiagnosis in 2016 to file a timely action, i.e., possibly no 20 later than December 31, 2020. However, Plaintiff did not file this action until August 24, 21 2021, which is nearly eight months after 2020 ended. Dkt. No. 1. Accordingly, the instant 22 action is untimely by at least eight months and must be dismissed as such. 23 24 CONCLUSION 25 For the foregoing reasons, the complaint is DISMISSED for failure to state a claim 26 for which relief can be granted and as untimely. 1 IT IS SO ORDERED. 2 || Dated: _ December 21, 2021 bol Loh emuty)

BETH LABSON FREEMAN

3 United States District Judge 4 5 6 7 8 9 10 1] 12

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19 20 21 22 23 24 rder of Dismissal 25 PRO-SEXBLFICR 2 1\06512Clark_dism(ftsac) 26 27