Richard Harrison v. USA ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD C. HARRISON, No. 22-15038
Plaintiff-Appellant, D.C. No. 4:21-cv-00074-RCC
v.
MEMORANDUM*
UNITED STATES OF AMERICA; A. ASH,
USP Medical - Doctor, USP Tucson; DE
GUZMAN, First name unknown, USP
Medical - Doctor, USP Tucson; C.
NEWLAND, USP Medical - PA-C, USP
Tucson; HAIGHT-BIEHLER, First name
unknown, USP Medical - DO/CD, USP
Tucson; RICHARD UNGER, USP Medical -
Doctor, USP Tucson,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Submitted August 15, 2023**
Before: TASHIMA, S.R. THOMAS, and FORREST, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Federal prisoner Richard C. Harrison appeals pro se from the district court’s
judgment dismissing his action under the Federal Tort Claims Act (“FTCA”) as
barred by the statute of limitations. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo. Gregg v. Hawaii, Dep’t of Pub. Safety, 870 F.3d 883, 886
(9th Cir. 2017) (dismissal as time-barred); Puri v. Khalsa, 844 F.3d 1152, 1157
(9th Cir. 2017) (dismissal under Federal Rule of Civil Procedure 12(b)(6)). We
affirm in part, reverse in part, and remand.
The district court properly dismissed as time-barred Harrison’s claim arising
from nurse practitioner Unger’s conduct because Harrison learned of his injury and
the failure to treat it more than two years before filing an administrative claim. See
28 U.S.C. § 2401(b) (“A tort claim against the United States shall be forever barred
unless it is presented . . . within two years after such claim accrues . . . .”); Tunac v.
United States, 897 F.3d 1197, 1206 (9th Cir. 2018) (“In a medical malpractice case
under the FTCA, a claim accrues when the plaintiff discovers, or in the exercise of
reasonable diligence should have discovered, the injury and its cause.” (citation
and internal quotation marks omitted)).
The district court dismissed Harrison’s claim arising from Dr. Ash’s eighty-
day delay in providing an antibiotic prescription because Harrison became aware
his prescription was delayed more than two years before filing an administrative
claim. However, Harrison alleged that the delay in antibiotics caused his ear
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infection to become resistant to antibiotics and his eardrum to collapse, which he
did not become aware of until March 2018. On this record, Harrison alleged facts
sufficient to show that his claim of the development of his ear infection into a more
serious condition accrued within the two-year limitations period and is thus timely.
See Raddatz v. United States, 750 F.2d 791, 796 (9th Cir. 1984) (explaining that a
cause of action stemming from a failure to diagnose or treat a pre-existing
condition accrues for purposes of § 2401(b) when “the patient becomes aware or
through the exercise of reasonable diligence should have become aware of the
development of a pre-existing problem into a more serious condition” (quoting
Augustine v. United States, 704 F.2d 1074, 1078 (9th Cir. 1983)). We reverse the
dismissal of Harrison’s claim as to Dr. Ash and remand for further proceedings.
Harrison’s request for summary judgment (Docket Entry No. 20) is denied.
The parties will bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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