Paul Johnson v. Joseph Chudy ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL DAVID JOHNSON, No. 17-16377
Plaintiff-Appellant, D.C. No. 3:14-cv-04958-JST
v.
MEMORANDUM*
JOSEPH CHUDY, M.D.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted August 11, 2020
San Francisco, California
Before: HAWKINS and CHRISTEN, Circuit Judges, and BATAILLON,** Senior
District Judge.
Paul Johnson, an inmate at High Desert State Prison, appeals the dismissal of
his pro se 42 U.S.C. § 1983 action for deliberate indifference to serious medical
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joseph F. Bataillon, Senior United States District
Judge for the District of Nebraska, sitting by designation.
needs. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.1 “We
review de novo the district court's dismissal of an action, accepting all factual
allegations in the complaint as true and drawing ‘all reasonable inferences in favor
of the nonmoving party.’” Gregg v. Hawaii, Dep't of Pub. Safety, 870 F.3d 883,
886–87 (9th Cir. 2017) (quoting TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.
1999)) (internal citation omitted).
Because the parties are familiar with the facts, we recite only those necessary
to resolve the issues on appeal. Johnson alleges he was treated by Appellee J. Chudy,
M.D. in 2009 for urological symptoms. He was diagnosed with prostate cancer in
2013 and filed this action in 2014. The district court dismissed Johnson’s claim as
barred by California’s four-year statute of limitations, finding the claim accrued in
2009 when Johnson sought medical care and was aware that his symptoms were not
treated. On appeal, Johnson, represented by appointed pro bono counsel, argues that
the district court erred in failing to apply the discovery rule of accrual and dismissing
his action, without leave to amend, as untimely.
1. The district court erred in failing to apply the discovery rule and dismissing
Johnson’s § 1983 deliberate indifference claim as time barred. “Although courts
look to state law for the length of the limitations period, the time at which a § 1983
1
Appellee J. Chudy, M.D. moves for judicial notice of Johnson’s amended
complaint in another case. We grant the motion and have considered the evidence.
See Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 n.3 (9th Cir. 2005).
2 17-16377
claim accrues ‘is a question of federal law,’ ‘conforming in general to common-law
tort principles.’” McDonough v. Smith, 139 S. Ct. 2149, 2155 (2019) (quoting
Wallace v. Kato, 549 U.S. 384, 388 (2007)). “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. Contrary to the district court’s assertion,
there are not two tracks for determining accrual dates in § 1983 cases. We apply the
discovery rule in § 1983 actions of this nature. See, e.g., Gregg, 870 F.3d at 885
(finding an Eighth Amendment deliberate indifference claim accrued when plaintiff
knew, or had reason to know, through reasonable diligence, that her psychological
injuries were caused by defendants’ improper conduct in therapy); Bibeau v. Pac.
Nw. Research Found. Inc., 188 F.3d 1105, 1108 (9th Cir. 1999), opinion amended
on denial of reh'g, 208 F.3d 831 (9th Cir. 2000) (applying discovery rule in an Eighth
Amendment action involving experimental testicular irradiation experiments in
prison).
The district court’s reliance on Wallace was misplaced because neither
constructive notice nor the discovery rule was at issue in that case. The victim of a
Fourth Amendment false arrest is charged with actual knowledge—he knows that he
is innocent and that he has been arrested. See Wallace, 549 U.S. at 390 n.3 (stating
the petitioner “was injured and suffered damages at the moment of his arrest, and
was entitled to bring suit at that time”).
3 17-16377
In contrast, Johnson alleges he suffered a latent or hidden injury and his Eighth
Amendment claim is governed by the discovery rule. The injury that is the basis of
Johnson’s claim is his development of advanced cancer as the alleged result of the
defendant’s failure to treat him, not the symptoms and pain the defendant allegedly
failed to treat in 2009. Based on his allegations, he could not have filed an Eighth
Amendment claim for failure to treat cancer in 2009. Though Johnson alleges
awareness of his symptoms, he had no reason to connect the symptoms to cancer at
any time prior to his diagnosis in 2013. It was therefore error for the district court
to dismiss Johnson’s action on the ground of the statute of limitations. In light of
this disposition, we need not address Johnson’s assertion that issues of fact preclude
dismissal or his assertion of error in the district court’s denial of leave to amend.
2. Because the defendant raises the supervisory liability argument for the first
time on appeal, we do not address it.
REVERSED.
4 17-16377