Actkinson v. Vargo
Opinion of the Court
MEMORANDUM
Timothy Actkinson (“Actkinson”)
In granting Dr. Vargo’s motion for summary judgment, the district court held: (1)
“We review a grant of summary judgment de novo to determine whether there are any genuine issues of material fact at issue and whether the district court correctly applied the relevant law. All reasonable inferences must be drawn in the nonmoving party’s favor, but are limited to those upon which a reasonable jury might return a verdict.” Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1053 (9th Cir. 2007) (internal citations and quotation marks omitted). We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.
Actkinson’s claims are not time-barred. The applicable statute of limitations in Actkinson’s claim, filed under 42 U.S.C. § 1983, is the statute of limitations for personal injury actions in the forum state, Oregon. Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). That statute provides a two-year statute of limitations. Or.Rev. Stat. § 12.110(1). “Federal law, however, governs when a claim accrues. A claim accrues when the plaintiff knows, or should know, of the injury which is the basis of the cause of action.” Fink, 192 F.3d at 914 (internal citation omitted). In a suit, like Actkinson’s, asserting an “injury” of deliberate indifference, the claim therefore accrues when the prisoner “knew or had reason to know of the [prison] employees’ deliberate indifference to his medical needs.” TwoRivers v. Lewis, 174 F.3d 987, 992 (9th Cir. 1999).
In his declaration filed in response to the motion for summary judgment, Actkinson states that he first discovered that the continued administration of Prednisolone, to which he was allergic, was causing his eye condition to deteriorate on or about May 29, 2003. Actkinson claims that he informed Dr. Vargo of this allergic reaction shortly thereafter, but that Dr. Vargo ignored his warning and continued to treat him with Prednisolone, causing his eyesight to worsen. This declaration raises a triable issue of fact as to whether Actkinson filed his complaint within two years of the date that he “knew or had reason to know of’ Dr. Vargo’s deliberate indifference to his Prednisolone allergy. Id.; see also Boles v. Hill, No. 04-1529-CO, 2007 WL 1723503, at *3 (D.Or. June 7, 2007) (finding that prisoner’s claim of deliberate indifference to medical needs accrued on the date that prison officials denied his request for surgery).
Regarding the nature of Dr. Var-go’s response: “A defendant must purposefully ignore or fail to respond to a prisoner’s pain or possible medical need in order for deliberate indifference to be established.” McGuckin, 974 F.2d at 1060. Actkinson’s pro se affidavits aver the following genuine issues of material fact regarding the elements of a claim for relief under § 1983:
The district court further erred in determining Dr. Vargo was entitled to qualified immunity. Under the doctrine of qualified immunity, “government officials preforming discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (citations omitted).
An inmate has a constitutional right not to have his medical providers employed by the State treat his condition with “deliberate indifference.” McGuckin, 974 F.2d at 1059. Dr. Vargo’s actions in prescribing and treating Actkinson with Prednisolone, after Actkinson had informed Dr. Vargo he was allergic to the medication and that it caused Actkinson to get repeated infections, raise a triable issue of fact as to whether a reasonable doctor in Dr. Var-go’s position would have known he was violating Actkinson’s clearly established right. Id. at 1060. Further, prisoners
In conclusion, we hold there are triable issues of fact regarding whether Dr. Vargo acted with deliberate indifference to Actkinsoris serious medical needs in violation of Aetkinsoris Eighth Amendment rights. Dr. Vargo is not entitled to qualified immunity from liability to Actkinson.
This case is remanded for trial.
REVERSED AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. In his prison records, and his own filings, appellant’s name is spelled “Actkinson” not "Atkinson.” The Clerk is instructed to change the docket to reflect the proper spelling of appellant's last name.
. Because of the parties' familiarity with the facts, they are discussed only as necessary.
. Before Dr. Vargo’s motion for summary judgment, Dr. Vargo filed a motion to dismiss the complaint based on the statute of limitations. The district court granted the motion to dismiss in part. Specifically, the district court granted the motion as to all of Actkinson’s claims arising out of actions and omissions by Dr. Vargo before March 24, 2002. The district court later affirmed that ruling in its order granting Dr. Vargo's motion for summary judgment by denying Actkinson’s motion to amend his complaint to the extent Actkinson wanted to add allegations that would be time-barred. We reverse this ruling as well.
. Where a plaintiff represents himself pro se, a court must:
[C]onsider as evidence in his opposition to summary judgment all of [the plaintiff’s] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [the plaintiff] attested under penalty of perjury that the contents of the motions or pleadings are true and correct.
Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004) (citations omitted).
Reference
- Full Case Name
- Timothy ACTKINSON v. John Michael VARGO Defendant—Appellee
- Cited By
- 1 case
- Status
- Published