(PC) McDaniel v. Lizarraga ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH LEON MCDANIEL, No. 2:19-cv-1136 DAD KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 JOE LIZARRAGA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding through counsel. Defendant Ibrahim’s fully 18 briefed motion for judgment on the pleadings is before the court. As it relates to the pending 19 motion, this action proceeds on plaintiff’s claims alleging deliberate indifference to serious 20 medical needs as to defendant Ibrahim’s post-operative medical care. As discussed below, the 21 undersigned finds that because plaintiff’s claims against defendant Ibrahim accrued at the latest in 22 2015, such claims are barred by the statute of limitations, and he is entitled to judgment on the 23 pleadings. 24 Procedural Background 25 On June 20, 2019, plaintiff, through counsel, filed a complaint for declaratory relief and 26 monetary damages against multiple defendants. (ECF No. 1.) Dr. Ibrahim filed an answer on 27 December 11, 2019. (ECF No. 10.) 28 //// 1 Defendants Toralba, Martinez, Galang, Hawkins and Crooks were dismissed with 2 prejudice based on the court’s finding that plaintiff’s Eighth Amendment claims were barred by 3 the two year statute of limitations. (ECF Nos. 54, 94 (Apr. 30, 2021), 109, & 112 (Oct. 1, 2021).) 4 Plaintiff filed a first amended complaint on October 31, 2021. (ECF No. 114.) 5 On November 22, 2021, defendant Ibrahim filed an amended answer. (ECF No. 115.) On 6 August 16, 2022, defendant Micael filed an answer. (ECF No. 138.) 7 On July 26, 2022, plaintiff’s claims against defendant Lin were dismissed with prejudice, 8 and defendant Micael’s motion to dismiss plaintiff’s First and Eighth Amendment claims was 9 denied. (ECF Nos. 124, 134 (July 26, 2022).) 10 On October 20, 2022, defendant Wilkenson was dismissed at plaintiff’s request. (ECF 11 No. 142.) 12 The Operative Pleading 13 This case proceeds on plaintiff’s verified first amended complaint alleging the following. 14 At all times relevant herein, plaintiff was incarcerated at Mule Creek State Prison (“MCSP”). 15 Plaintiff named as defendants Dr. Ibrahim, physician and surgeon at Doctor’s Hospital of 16 Manteca, California; Micael, employed by the California Department of Corrections and 17 Rehabilitation (“CDCR”) at MCSP as a Clinic RN; Dr. Lin, outside physician and surgeon, and 18 Physical Therapist Wilkenson, independent contractor. (ECF No. 114 at 3.) 19 After an assault, plaintiff suffered injuries to his right hand, which required multiple 20 surgeries and caused plaintiff pain. Plaintiff alleged deliberate indifference to his serious medical 21 needs in connection with the care and treatment of fractures to numerous metacarpal bones in his 22 right hand, including alleged delays in post-operative care, and the provision of physical therapy 23 related thereto. Due to such alleged deliberate indifference, including delays and omissions, 24 plaintiff suffered severe contractures of his second, third, fourth and fifth digits of his right hand, 25 and a severely deformed right hand, rendering his dominant right hand unusable, and subjecting 26 plaintiff to severe and chronic pain. Plaintiff seeks, inter alia, money damages. 27 //// 28 //// 1 Factual Background 2 Plaintiff is developmentally disabled. (ECF No. 114 at 5.) On May 22, 2014, plaintiff 3 was assaulted and suffered a right hand injury. At the time of the assault, plaintiff was enrolled in 4 the CCCMS mental health delivery program.1 (ECF No. 114 at 4.) Plaintiff’s hand injury 5 required surgery, during which K-Wire Pins x3 were implanted. The pins were allegedly not 6 timely removed; rather, 58 days after surgery, the pins, partially protruding and possibly infected, 7 were finally removed. On October 21, 2014, Dr. Rudas noted that post operatively, plaintiff had 8 “a very poor result” and was left with contractures of his right, third, fourth and fifth fingers. 9 (ECF No. 114 at 6.) Plaintiff did not receive physical therapy as ordered. 10 On December 15, 2014, plaintiff met with Dr. Ibrahim to discuss corrective/revisionist 11 surgery for the contractures. (ECF No. 114 at 7.) On January 30, 2015, Dr. Ibrahim performed 12 surgery on plaintiff’s right hand to free the contractures. (ECF No. 114 at 7-8.) 13 On February 13, 2015, Dr. Pettersen requested urgent physical therapy for plaintiff’s right 14 hand contractures of the third, fourth and fifth metacarpal digits. (ECF No. 114 at 8.) By March 15 23, 2015, Dr. Ibrahim noted plaintiff had no physical therapy thus far. (Id. at 8.) On September 16 21, 2015, plaintiff was seen by unidentified nursing staff at MCSP after plaintiff began a hunger 17 strike to protest untreated chronic and severe right hand pain after the two failed surgeries. (Id. at 18 9.) 19 On March 3, 2016, plaintiff’s right hand was x-rayed; results showed healed fractures of 20 the metacarpal bones with chronic deformity of the hand. (Id.) On November 14, 2016, Dr. 21 Vaughn requested plaintiff receive physical therapy two times per week for eight weeks for the 22 contractures. (Id. at 10.) 23 On November 16, 2017, plaintiff met with Dr. Ibrahim; plaintiff did not agree to allow Dr. 24 Ibrahim to fuse plaintiff’s joints. (Id. at 10.) 25 1 The Mental Health Services Delivery System Program Guide for the California Department of 26 Corrections and Rehabilitation provides four levels of mental health care services: Correctional 27 Clinical Case Management System (“CCCMS”); Enhanced Outpatient (“EOP”); Mental Health Crisis Bed (“MHCB”) and inpatient hospital care. Coleman v. Brown, 2013 WL 6491529, at *1 28 (E.D. Cal. Dec. 10, 2013). 1 Legal Standard for Judgment on the Pleadings 2 Under Federal Rule of Civil Procedure 12(c), judgment on the pleadings may be granted 3 when, accepting as true all material allegations contained in the nonmoving party’s pleadings, the 4 moving party is entitled to judgment as a matter of law. Chavez v United States, 683 F.3d 1102, 5 1108 (9th Cir. 2012). The applicable standard is essentially identical to the standard for a motion 6 to dismiss under Rule 12(b)(6). United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 7 637 F.3d 1047, 1055 n.4 (9th Cir. 2011). Thus, although the Court must accept well-pleaded 8 facts as true, it is not required to accept mere conclusory allegations or conclusions of law. See 9 Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A motion for judgment on the pleadings should 10 be granted “when there is no issue of material fact in dispute, and the moving party is entitled to 11 judgment as a matter of law.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). 12 Statute of Limitations 13 Defendant Ibrahim moves for judgment on the pleadings based on the statute of 14 limitations. 15 A. Request for Judicial Notice 16 Defendant asks the court to take judicial notice of CDCR public inmate information 17 confirming plaintiff Joseph McDaniel is serving a sentence of life without the possibility of 18 parole. (ECF No. 141-2 at 2, 4.) Plaintiff did not oppose or respond to the request. 19 The Court may take judicial notice of public records available on online inmate locators. 20 See United States v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011) (taking judicial notice of 21 Bureau of Prisons’ inmate locator available to the public); Fed. R. Evid. 201 (court may take 22 judicial notice of facts that are capable of accurate determination by sources whose accuracy 23 cannot reasonably be questioned); see also Louis v. McCormick & Schmick Restaurant Corp., 24 460 F.Supp.2d 1153, 1155 n.4 (C.D. Cal. 2006) (court may take judicial notice of state agency 25 records); Pacheco v. Diaz, 2019 WL 5073594 at *2 (E.D. Cal. Sept. 4, 2019) (taking judicial 26 notice of CDCR’s Inmate Locator system); Foley v. Martz, 2018 WL 5111998, at *1 (S.D. Cal. 27 Oct. 19, 2018) (same). 28 //// 1 The CDCR inmate locator website also reflects that plaintiff is serving a sentence of life 2 without parole. (See https://inmatelocator.cdcr.ca.gov). Defendant’s request to take judicial 3 notice is granted. The undersigned finds that plaintiff was sentenced to life without the 4 possibility of parole. 5 B. Standards Governing Statute of Limitations 6 “A claim may be dismissed [for failing to state a claim] on the ground that it is barred by 7 the applicable statute of limitations only when ‘the running of the statute is apparent on the face 8 of the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 9 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). 10 “However, Rule 12(b)(6) also permits consideration of any matters of which judicial notice may 11 be taken, and any exhibits attached to the complaint.” Guerra v. Janda, 2014 WL 4385689, at *9 12 (S.D. Cal. Jul. 22, 2014) (citing United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)). 13 “‘[F]ederal law determines when a civil rights claim accrues.’” Azer v. Connell, 306 F.3d 14 930, 936 (9th Cir. 2002) (quoting Morales v. City of Los Angeles, 214 F.3d 1151, 1153-54 (9th 15 Cir. 2000)). “Under federal law, a claim accrues when the plaintiff knows or should know of the 16 injury that is the basis of the cause of action.” Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 17 2009) (citation omitted); Maldonado, 370 F.3d at 955. 18 Because 42 U.S.C. § 1983 does not have its own limitations period, this court applies 19 California’s “statute of limitations for personal injury actions, along with the forum state’s law 20 regarding tolling, including equitable tolling, except to the extent any of these laws is inconsistent 21 with federal law.” Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). California’s statute of 22 limitations for personal injury actions is two years. Cal. Civ. Proc. Code § 335.1; Maldonado v. 23 Harris, 370 F.3d 945, 954-55 (9th Cir. 2004). 24 Such limitation period is statutorily tolled for a period of two years for a person who is 25 “imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a 26 term less than for life.” Cal. Civ. Proc. Code § 352.1. Only prisoners sentenced to life without 27 the possibility of parole are excluded from such additional two-year tolling provision. Brown v. 28 //// 1 Cnty. of Los Angeles, 830 F. App’x 231, 232 (9th Cir. 2020) (only prisoners serving sentences 2 less than life without the possibility of parole are entitled to § 352.1 tolling). 3 In addition, prisoners are entitled to tolling during the exhaustion of mandatory 4 administrative remedies. Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (“the applicable 5 statute of limitations must be tolled while a prisoner completes the mandatory [administrative] 6 exhaustion process” required under the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. 7 § 1997e(a)). 8 This court must apply California law governing equitable tolling. Jones v. Blanas, 393 9 F.3d at 927. Under California law, equitable tolling “‘reliev[es] plaintiff from the bar of a 10 limitations statute when, possessing several legal remedies he, reasonably and in good faith, 11 pursues one designed to lessen the extent of his injuries or damage.’” Cervantes v. City of San 12 Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (quoting Addison v. California, 21 Cal. 3d 313, 317 13 (1978)). “Under California law, tolling is appropriate in a later suit when an earlier suit was filed 14 and where the record shows: (1) timely notice to the defendant in filing the first claim; (2) lack of 15 prejudice to the defendant in gathering evidence to defendant against the second claim; and (3) 16 good faith and reasonable conduct by the plaintiff in filing the second claim.” Azer, 306 F.3d at 17 936 (citation and internal quotation marks omitted); Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 18 1999). A plaintiff is only entitled to equitable tolling if all three prongs of the test are satisfied. 19 Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1140 (9th Cir. 2001). Plaintiff 20 bears the burden to plead facts demonstrating he is entitled to equitable tolling. Hinton v. Pac. 21 Enters., 5 F.3d 391, 395 (9th Cir. 1993). “California courts apply equitable tolling ‘to prevent the 22 unjust technical forfeiture of causes of action, where the defendant would suffer no prejudice.’” 23 Jones v. Blanas, 393 F.3d at 928 (quoting Lantzy v. Centex Homes, 31 Cal. 4th 363, 370 (2003)). 24 Unless addressed in a summary judgment motion, this court may resolve the statute of 25 limitations issue only where the “running of the statute [of limitations] is apparent on the face of 26 the complaint.” United States ex rel. Air Control Tech., Inc. v. Pre Con Industries, Inc., 720 F.3d 27 1174, 1178 (9th Cir. 2013) (internal quotation and citations omitted). 28 //// 1 C. Allegations as to Dr. Ibrahim 2 Plaintiff’s verified amended complaint alleges as follows. On December 15, 2014, 3 plaintiff met with Dr. Ibrahim to discuss corrective/revisionist surgery for the contractures, 4 suffered from prolonged immobilization and the overdue placement of K-Wire pins x3 left in 5 plaintiff’s right hand by Dr. Galang. (ECF No. 114 at 7, 15.) On January 30, 2015, Dr. Ibrahim 6 performed corrective surgery on plaintiff’s right hand to free the contractures of his third, fourth 7 and fifth metacarpal digits. (ECF No. 114 at 7-8.) 8 Dr. Ibrahim was deliberately indifferent to plaintiff’s serious medical needs after he failed 9 to note or schedule any type of post-operative follow up either with him or plaintiff’s primary 10 care physician at MCSP. (ECF No. 114 at 16.) Dr. Ibrahim was aware of plaintiff’s need to have 11 the corrective surgery because the metacarpal phalanges were severely contracted after the first K 12 wire pins were not timely removed. Dr. Ibrahim also knew that Dr. Galang left plaintiff in the 13 Who brace short arm splint too long and failed to see plaintiff in a timely manner. Dr. Ibrahim 14 failed to take reasonable measures to ensure plaintiff received a timely follow up appointment 15 after the January 30, 2015 surgery, again leaving plaintiff in a WHO brace short arm splint for too 16 long. (ECF No. 114 at 17.) As a result, plaintiff suffered severe and prolonged pain, and an even 17 worse surgical outcome. Despite Dr. Ibrahim’s initial post-surgical notes that he had achieved 18 100% freedom of plaintiff’s third, fourth and fifth metacarpal/tendon adhesions (contractures), 19 after Dr. Ibrahim failed to ensure plaintiff received timely post-operative care, plaintiff suffered 20 severe contractures to the second, third, fourth and fifth metacarpal phalanges and a severely 21 deformed, non-usable dominant right hand. (ECF No. 114 at 18-19.) 22 Plaintiff does not allege that Dr. Ibrahim was deliberately indifferent to plaintiff’s serious 23 medical needs at or after the November 16, 2017 appointment at which time plaintiff declined to 24 undergo another surgery. (ECF No. 114, passim.) 25 Plaintiff appended Dr. Ibrahim’s medical records. (ECF No. 114-4 to 114-7.) 26 D. The Parties’ Arguments 27 Dr. Ibrahim argues that his post-operative care in 2015 is barred by the two-year statute of 28 limitations, similar to the court’s findings as to defendants Toralba, Martinez, Dr. Galang, Dr. 1 Hawkins and Dr. Crooks. Plaintiff was aware of the harm or injuries to his right hand allegedly 2 caused by Dr. Ibrahim as of September 2015, but plaintiff did not file the instant complaint until 3 almost four years later. Specifically, defendant contends that plaintiff was aware on September 4 21, 2015, when plaintiff began a hunger strike to protest the two failed surgeries. (ECF No. 141-1 5 at 6.) Plaintiff was made further aware by the March 3, 2015 x-ray report which noted well- 6 healed fractures “present with chronic deformity.” (Id., quoting ECF No. 114 at 9.) 7 In opposition, plaintiff concedes that the operative pleading is “devoid of any alleged 8 Eighth Amendment violations stemming from the visit with Dr. Ibrahim on November 16, 2017,” 9 but argues that the “entire treatment period, and the treatment itself,” establishes defendant’s 10 liability. (ECF No. 143 at 6.) Plaintiff contends that the relation back doctrine “applies by 11 analogy,” “that plaintiff alleges that defendant Ibrahim was, and is, liable in all his dealings with 12 [plaintiff] McDaniel.” (ECF No. 143 at 7-8, citing Fed R. Civ. P. 15(c).) Further, plaintiff 13 disputes defendant’s calculation of when plaintiff’s claim accrued. Plaintiff argues that the court 14 should consider plaintiff’s diminished mental capacity and sophistication, and because he is “on 15 the spectrum of learning and educationally disabled,” “he is not subject to the ‘reasonable man’ 16 standard.” (ECF No. 143 at 9.) As a result, plaintiff contends that the accrual date was when 17 plaintiff was informed he would not get better, not when plaintiff was aware of his pain and that 18 his hand had contractures. 19 Plaintiff asks the court to deny the motion, but in the alternative, seeks leave to amend. 20 In reply, defendant points out that the undersigned previously rejected, and should again 21 reject, plaintiff’s renewed argument: 22 A person knows, or should know, of the injury that forms the basis for an action when he knows “both the existence and the cause of his 23 injury,” not upon becoming aware of the applicable law that gives rise to a claim. United States v. Kubrick, 444 U.S. 111, 113 (1979); 24 see also Lukovsky v. City & Cnty. of San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008). Plaintiff’s allegations make clear that plaintiff 25 knew his right hand was contracted after the first surgery and after the delay in removing the surgical pins and the prolonged 26 immobilization of his hand, which he alleges caused the contractures. 27 (ECF No. 144 at 3, quoting ECF No. 109 at 11:19-25 [adopted in full, ECF No. 112].) Although 28 Dr. Ibrahim treated plaintiff in 2015 instead of 2014, defendant argues that the Court’s prior 1 reasoning and rationale applies equally here. Plaintiff was aware of the alleged harm or injuries 2 to his right hand caused by Dr. Ibrahim as of September 21, 2015, when plaintiff began his 3 hunger strike to protest the chronic and severe pain resulting from the two failed surgeries to his 4 right hand, and again on March 3, 2016, when the x-ray report noted his chronic deformity. 5 Further, defendant contends that plaintiff’s reliance on the relation back doctrine is 6 unclear and unavailing because Rule 15(c)(1) is not implicated on these facts, and “the November 7 16, 2017 visit has no bearing on the statute of limitations analysis in this case.” (ECF No. 144 at 8 4.) To the extent plaintiff is attempting to raise a new claim arising from the November 16, 2017 9 visit, defendant argues that such effort fails because the relation back doctrine only applies to add 10 a new claim if the original complaint was timely. Because the original complaint was filed long 11 after the limitations period expired, the relation back doctrine could not save any new claim. 12 As to further amendment, defendant argues that because plaintiff’s claims are based on 13 defendant’s treatment of plaintiff in 2015, such claims are time-barred and cannot be cured by 14 amendment. Therefore, leave to amend should be denied. 15 E. Discussion 16 It is undisputed that because plaintiff is serving a sentence of life without the possibility of 17 parole, the statute of limitations period is two years. The undersigned is sympathetic to plaintiff’s 18 disability, but plaintiff offers no legal authority for his argument that the accrual of the limitations 19 period should be the date plaintiff was informed that his condition would not improve. Contrary 20 to plaintiff’s argument that “[t]he bottom line is when did plaintiff KNOW he had a lawsuit” 21 (ECF No. 143 at 9), under federal law the accrual of an action is determined by when the plaintiff 22 knows “both the existence and the cause of his injury,” not upon becoming aware of the 23 applicable law that gives rise to a claim. United States v. Kubrick, 444 U.S. 111, 113 (1979); see 24 also Lukovsky v. City & Cnty. of San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008). “We have 25 interpreted the ‘question . . . [of] what . . . we mean by injury’ with some flexibility, and held that 26 a ‘claim accrues’ not just when the plaintiff experiences the injury, but ‘when the plaintiff knew 27 or in the exercise of reasonable diligence should have known of the injury and the cause of that 28 //// 1 injury.’” Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 581 (9th Cir. 2012) (quoting 2 Lukovsky, 535 F.3d at 1051). 3 Here, plaintiff claims that Dr. Ibrahim failed to ensure plaintiff received timely post- 4 operative care after the January 30, 2015 surgery. Thus, the limitations period should begin on 5 the date plaintiff was aware that no post-operative care was provided because he appears to 6 contend that was the cause of his injury. Such view is supported by plaintiff’s claim that the lack 7 of post-operative care caused the contractures he suffered after the first surgery in 2014. Plaintiff 8 does not set forth what date he believes he should have received post-operative care in 2015 or 9 how soon after the second surgery did the contractures return. But by February 13, 2015, Dr. 10 Pettersen requested urgent physical therapy for plaintiff’s right hand contractures of the third, 11 fourth and fifth metacarpal digits, suggesting the contractures had returned by then. Given that 12 most post-operative care takes place soon after surgery, plaintiff was aware of such failure long 13 before his hunger strike.2 However, liberally viewing the allegations, plaintiff knew or should 14 have known about his injury by at least September 21, 2015, when he began his hunger strike to 15 protest his chronic and severe pain resulting from both failed surgeries. Such limitations period 16 commenced on September 22, 2015 and expired on September 22, 2016. Plaintiff did not file this 17 action until June 20, 2019, over three years and eight months after the limitations period expired. 18 But even assuming, arguendo, that the claim did not accrue until March 3, 2016, when 19 the x-ray showed that the bones had healed but his hand showed a “chronic deformity,” plaintiff’s 20 claim against Dr. Ibrahim remains time barred. Such limitations period would commence on 21 March 4, 2016, and, because it would expire on Saturday, March 4, 2017, plaintiff’s complaint 22 was due on Monday, March 6, 2017. But it was not filed until June 20, 2019, over three years 23 and three months later. 24 //// 25 2 Interestingly, plaintiff omitted from his amended complaint an allegation he included in his verified original complaint. In paragraph 39, plaintiff claimed that on April 6, 2015, Nurse 26 Yolanda Decoito, RN, filed a CDCR Form 7230-M Primary Care Provider Progress Note, and 27 noted that she called Defendant Dr. Mohamed Ibrahim, MD, at his business office and informed him that Plaintiff intended to sue him (and others) in regards to the medical care provided to 28 Plaintiff. . . .” (ECF No. 1 at 7.) 1 Other than acknowledging that he exhausted administrative remedies, plaintiff did not 2 plead any specific facts about such exhaustion and did not include any such facts in his opposition 3 to the motion. But even if the court liberally granted plaintiff a year for the exhaustion of 4 administrative remedies, such additional time would not save plaintiff’s claim against Dr. Ibrahim 5 under either of the above scenarios. 6 Plaintiff offered no facts or argument to support a claim for equitable tolling, thus failing 7 to meet his burden. 8 As for plaintiff’s attempt to invoke the relation back doctrine to save this claim, the 9 undersigned is not persuaded that such doctrine applies even by analogy. The fact that plaintiff 10 saw Dr. Ibrahim again on November 16, 2017, to discuss a third surgery – which plaintiff did not 11 have – has no bearing on when plaintiff knew or should have known when Dr. Ibrahim failed to 12 schedule timely post-operative care after the January 30, 2015 surgery, or that because of such 13 failure plaintiff again suffered contractures. (ECF No. 114-5.) 14 The undersigned finds that plaintiff failed to timely file his claim against defendant Dr. 15 Ibrahim; therefore, defendant’s motion should be granted. 16 Leave to Amend 17 Any new claims arising from Dr. Ibrahim’s treatment in 2015 would be time-barred. 18 Moreover, plaintiff identifies no new facts demonstrating Dr. Ibrahim was deliberately indifferent 19 to plaintiff’s serious medical needs when Dr. Ibrahim consulted with plaintiff on November 16, 20 2017, for a potential surgery that did not take place. Thus, the undersigned finds that granting 21 plaintiff leave to amend would be futile. See, e.g., Platt Elec. Supply, Inc. v. EOFF Elec., Inc., 22 522 F.3d 1049, 1060 (9th Cir. 2008) (affirming dismissal without leave to amend proper where 23 the claims were barred by the statute of limitations so amendment would be futile); Critchlow v. 24 Critchlow, LB, 2013 WL 670448, at *11 (N.D. Cal. Feb. 25, 2013) (dismissing complaint with 25 prejudice where all claims were barred by the statute of limitations). 26 Conclusion 27 Accordingly, IT IS HEREBY ORDERED that defendant’s request for judicial notice 28 (ECF No. 141-2) is granted. ] Further, IT IS RECOMMENDED that defendant Dr. Ibrahim’s motion for judgment on 2 || the pleadings (ECF No. 141) be granted, that plaintiff's alternative request for leave to amend be 3 || denied, and this action be remanded to the undersigned for further scheduling. 4 These findings and recommendations are submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 6 || after being served with these findings and recommendations, any party may file written 7 || objections with the court and serve a copy on all parties. Such a document should be captioned 8 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 9 || objections shall be filed and served within fourteen days after service of the objections. The 10 || parties are advised that failure to file objections within the specified time may waive the right to 11 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 12 || Dated: May 30, 2023 i Aectl Aharon 14 KENDALL J.NE UNITED STATES MAGISTRATE JUDGE 15 /medal 136.jop 16 17 18 19 20 21 22 23 24 25 26 27 28 12