Glenn Bosworth v. The United States of America

IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

Case No. ED CV 19-2175 DMG (MRW) GLENN BOSWORTH,

ORDER DISMISSING ACTION Plaintiff, v.

UNITED STATES OF AMERICA, et al.,

Defendants.

The Court dismisses this untimely action with prejudice against the three remaining individual defendants.

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1. This is a pro se Bivens action involving a former prisoner. Plaintiff Bosworth was an inmate at the federal prison in Lompoc and other facilities. He injured his wrist in 2012 and subsequently developed significant medical complications (reflex sympathetic dystrophy (RSD)). In 2014, BOP medical staff prescribed a medical procedure for Plaintiff to treat his RSD. Plaintiff alleges that he never received the surgery.

2. In November 2019, Plaintiff filed his complaint in this action. The complaint alleged that three BOP professionals (Drs. Gross, Pelton, and Hirano) were deliberately indifferent to his medical needs by cancelling or failing to ensure that Plaintiff received the RSD medical procedure.

3. The government contends that Plaintiff’s civil action is untimely. The government presented evidence (primarily, Plaintiff’s own administrative submissions) showing that, by August or October 2015,1 Plaintiff knew that: (a) he had developed RSD following his original injury; (b) BOP doctors had authorized surgery for Plaintiff’s RSD condition; and (c) Plaintiff had not received the procedure. (Docket # 29 at 10; # 29-2 at 26.)

4. The Court notes its earlier decision in this matter regarding the untimeliness of Plaintiff’s parallel FTCA claims against the United States for the same alleged misconduct. (Docket # 26, 34.) Specifically, the Court accepted Magistrate Judge Wilner’s conclusion that Plaintiff’s FTCA claim accrued by “by late 2015 [when] Plaintiff appears to have learned that the agency canceled” his medical procedure. (Docket # 26 at 8.)

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5. The statute of limitations for Bivens claims is borrowed from the law of the forum state. Papa v. United States, 281 F.3d 1004, 1009 (9th Cir. 2002); Schwarz v. Meinberg, 761 F. App’x 732, 735 (9th Cir. 2019), citing Van Strum v. Lawn, 940 F.2d 406, 408-10 (9th Cir. 1991). In

6. Although the length of the limitations period is derived from state law, federal law determines when that period begins upon accrual of a claim. Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000); Rhodes v. Chavez, 644 F. App’x 714 (9th Cir. 2016) (same). A Bivens claim accrues when the plaintiff knows or has reason to know of the injury. Western Center, 235 F.3d at1156, citing Bagley v. CMC Real Estate Corp., 923 F.2d 758, 761-62 (9th Cir. 1991). Accrual occurs when an individual knows a defendant’s deliberate indifference caused him substantial harm, “even though the full extent of the injury is not then known or predictable.” Wallace v. Kato, 549 U.S. 384, 391 (2007).

7. In this way, the analysis of the accrual of a Bivens cause of action alleging harm by a medical practitioner is indistinguishable from that for a claim of medical malpractice under the FTCA. Such a claim accrues under the FTCA “when the plaintiff knows both the existence and the cause of his injury.” United States v. Kubrick, 444 U.S. 111, 113 (1979). When a plaintiff’s “claim of medical malpractice is based on the

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8. The government correctly argues that Plaintiff’s Bivens claims against the individual defendants are untimely. Plaintiff had four years from the time that his claims accrued to commence this legal action. Cal. Civ. Proc. Code §§ 352.1, 352.1(a). The Court previously concluded that Plaintiff’s claim accrued in 2015 when he learned that he had not been provided with the RSD medical procedure prescribed for him. Augustine, 704 F.2d at 1078; Docket # 26 at 8. The government further clarified and buttressed that conclusion by submitting proof that Plaintiff admitted knowledge of these key facts by August 2015. (Docket # 29-2 at 26.)

9. Plaintiff did not commence this action until November 2019. That was well after the expiration of the extended limitations period. The claims against the individual physicians are barred by operation of the statute of limitations.3

In the alternative, it is apparent that Plaintiff failed to properly serve either Defendant Pelton or Hirano. Plaintiff does not convincingly demonstrate that merely mailing a complaint to a prospective defendant at her or his workplace is adequate service under Federal Rule of Civil Procedure 4, Colorado law (Pelton), or Washington law (Hirano). And, given that the claims

10. Plaintiff offers no credible evidence or argument to support a different claim accrual date. Moreover, the Court previously rejected his contentions regarding equitable tolling or the “continuous treatment” rule. (Docket # 36 at 8-12: # 26 at 9-10.) Finally, there is no merit to Plaintiffs claims that “judicial delay” or the existence of his other previous BOP civil cases justifies his late commencement of this case. (Id.) CONCLUSION

11. A pro se litigant is ordinarily entitled to receive an opportunity to amend a defective complaint in an effort to state a proper claim for relief. Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000). This rule does not apply, however, when “the basic facts are alleged and have been analyzed” and it is apparent that that Plaintiff “cannot cure the flaws” in his claims. Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002); see also Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (district court has discretion to deny leave to amend if futile).

12. Plaintiff cannot plausibly “cure the flaws” with his untimely claims against the individual defendants. Therefore, this action is dismissed with prejudice and without leave to amend. Plaintiffs motion for leave to file a sur-reply (Docket # 37) is denied. by Dated: August 12, 2021

DOLLY/¥I. GEE UNITED STATES DISTRICT JUDGE Presented by:

[ HON. MICHAEL R. WILNER UNITED STATES MAGISTRATE JUDGE —_ against these individuals are time-barred, Plaintiff cannot show good cause to extend the time to serve them. Fed. R. Civ. P. 4(m).