Free Motion to Dismiss Case - District Court of Arizona - Arizona

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FADELL, CHENEY & BURT, P.L.L.C. 1601 North Seventh Street, Suite 400 Phoenix, Arizona 85006
Telephone: (602) 257-5601 /E-mail: [email protected] Telephone (602) 257-7911 / E-mail: [email protected]

Gary A. Fadell ­ 005879 Gabriel V. Kory -- 022536

Attorneys for Defendant Lizarraga IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Jay Jeffers, Jr., Plaintiff vs. Officer Ortega; Corporal Williams; Officer Spurlock; and Doctor Lizarrage, Defendants Defendant Dario Lizarraga, M.D., pursuant to Rule 12(c) Fed.R.Civ.P., hereby moves to dismiss Plaintiff's Amended Complaint for failure to state a claim upon which relief can be granted. As outlined more fully herein, Plaintiff's claims under 42 U.S.C. § 1983 are untimely and must be dismissed with prejudice. Dr. Lizarraga is entitled to judgment as a mater of law. I. FACTUAL AND PROCEDURAL HISTORY On March 22, 2004, Plaintiff Jay Jeffers, Jr. ("Mr. Jeffers") filed a Civil Rights Complaint against Defendants Tanya (Williams) Gant, Joseph Ortega, Rebecca Spurlock, and the Pinal County Jail's Medical Staff. Since that time, the Court has allowed Mr. Jeffers to amend his Complaint to include Dario Lizarraga, M.D. Mr. Jeffers' various allegations stem from events taking place during his incarceration at the Pinal County Jail, from December 16, 2000 through April 2, 2001. Mr. Jeffers alleges that on Friday, January 12, 2001, at 8:30 a.m., he was given a bowl of oatmeal with a long black hair in it. (See Plaintiff's Amended Complaint at p. 4). Following his receipt of the oatmeal, Mr. Jeffers informed the guards that he needed a No. CV 2004-0572-PHX-MHM (MS) DEFENDANT DARIO LIZARRAGA, M.D.'S MOTION FOR JUDGMENT ON THE PLEADINGS

Case 2:04-cv-00572-MHM-LOA

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second breakfast tray.

An alleged verbal disagreement followed.

(See Plaintiff's

Amended Complaint at p. 4). As a result, according to Mr. Jeffers' Amended Complaint, he was placed on "lock down" for 168 hours. (See Plaintiff's Amended Complaint at p. 4). Mr. Jeffers also alleges that beginning on, or about, January 30, 2001, Pinal County Officers refused to provide him with timely meals causing his blood sugars to become unbalanced, and putting his health at risk due to his diabetes. (See Plaintiff's Amended Complaint at p. 7). Mr. Jeffers alleges that Dario Lizarraga, M.D. was aware of the officers' alleged actions, and showed a "deliberate indifference" to his medical needs. In his Amended Complaint, Mr. Jeffers describes a conversation that allegedly took place between himself and Dr. Lizarraga on February 27, 2001. Mr. Jeffers alleges that Dr. Lizarraga said he was not able to provide him with a necessary "sliding scale"1 to maintain his insulin levels due to Pinal County Jail's policies and that if he was caring for his diabetic condition outside the confines of the Pinal County Jail, he could provide him with better care. (See Plaintiff's Amended Complaint at p. 13-14). Mr. Jeffers was released from Pinal County Jail on April 2, 2001. (See Jeffers' Criminal Record attached hereto as Exhibit 1). II. LEGAL ARGUMENT A motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) is analyzed under the same standard applicable to a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(c). Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816 115 S.Ct. 73, 130 L.Ed.2d 28 (1994). As a result, judgment on the pleadings is appropriate only if, after drawing all reasonable inferences in favor of the non-moving party, it is apparent from the pleadings that the moving party is entitled to judgment as a matter of law. United States v. Weisz, 914 F.Supp. 1050, 1052 (S.D.N.Y.

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A sliding scale refers to adjusting insulin on the basis of blood glucose tests, meals, and activity levels.

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1996). In deciding a motion for judgment on the pleadings, the Court may consider the factual allegations in the Complaint, which are accepted as true, documents attached to the Complaint as an exhibit or incorporated by reference, matters of which judicial notice may be taken, or to documents either in plaintiff' possession or of which plaintiff had s' knowledge of and relied upon in bringing suit. Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993) (emphasis added). A. Statute of Limitations for § 1983 Actions Section 1983 does not have its own statute of limitations. As a result, federal courts look to the forum state's limitation governing personal injury claims to determine the length of time in which a plaintiff has to bring a § 1983 action. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). In Arizona, courts apply a two-year statute of limitations to § 1983 claims. Id. (In TwoRivers, supra, a prisoner brought § 1983 action alleging deliberate indifference to his serious medical needs by Arizona Department of Corrections (ADOC) employees). Note, however, that even though state law determines the applicable statute of limitations, because Mr. Jeffers' claim is a federal cause of action, federal law, not state law, determines when his claim accrued. Under federal law, "a claim accrues when the plaintiff knows or had reason to know of the injury which is the basis for the action." Id. (Emphasis added.) B. Date of Accrual for Jeffers' Claim against Dr. Lizarraga As detailed above, Mr. Jeffers' claim against Dr. Lizarraga stem from allegations that occurred on January 12, 2001, as well as acts of alleged deliberate indifference that began on approximately January 30, 2001. Mr. Jeffers argues that Dr. Lizarraga failed to provide him with adequate dietary and medical care, and failed to maintain a "sliding scale" to address Mr. Jeffers' insulin levels -- all of which were violations of Mr. Jeffers' civil rights. In Mr. Jeffers' Amended Complaint, he states that he authored multiple written complaints to the Pinal County Jail staff regarding his care and treatment. Specifically, Mr. Jeffers states in his Amended Complaint that he "gathered up all of the

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whole complaints (authored during his incarceration), 3 months of daily records of Plaintiff's blood-sugar count, and put them into a large envelope and addressed it to the Honorable Boyd T. Johnson, at Pinal Superior Court in Florence. 2" (Plaintiff's Amended Complaint at p. 11). He goes on to say that this was necessary because the facility and its staff were not responsive to his needs. (See Plaintiff's Amended Complaint at p. 13). At the moment, Mr. Jeffers put pencil to paper to draft his complaints to the Pinal County Jail during his incarceration of December 16, 2000 through April 2, 2001, it can be said that he knew, or should have known, of his injury. (See Jeffers' Criminal Record attached hereto as Exhibit 1). He was abbreviating the same allegations he ultimately filed in his Complaint to the Court. This time frame, ending in April 2001, is outside the two-year Arizona statue of limitations on § 1983 claims for personally injury. As further evidence that Mr. Jeffers' knew, or should have known, that his rights were being violated during his incarceration. Mr. Jeffers cites to an alleged February 27, 2001, conversation between Mr. Jeffers and Dr. Lizarraga in his Amended Complaint where Dr. Lizarraga allegedly told Mr. Jeffers that he could not properly care for his diabetic condition due to the Pinal County Jail policies. These events allegedly taking place on February 27, 2001, undoubtedly provide the necessary evidence that Mr. Jeffers had reason to believe that his rights were being violated. This time frame is also outside the applicable two-year Arizona statue of limitations for § 1983 claims for personal injury. Even assuming argumento, that Mr. Jeffers had no reason to know that his rights were being violated until the very last day of his incarceration, April 2, 2001, this action would still be time barred.

Please note, under 42 U.S.C. § 1997e(a), commonly referred to as the Prison Litigation Reform Act ("PLRA") prisoners are required to exhaust administrative remedies before bringing suit under § 1983. Section 1997e(a) instructs that "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in a jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."

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III.

CONCLUSION In Plaintiff's Amended Complaint filed in this case, he describes a number of

occasions when he knew, or had reason to know, that Dr. Lizarraga (and the other Defendants) allegedly showed a deliberate indifference to his medical needs. Nonetheless, Mr. Jeffers waited more than two years after he suffered his alleged injury to file his Complaint. Mr. Jeffers' action is untimely and barred by the statue of limitations. Under the circumstances, Defendant Dr. Lizarraga respectfully requests that the Court dismiss this matter with prejudice. DATED this 11th day of October, 2005. FADELL, CHENEY & BURT, P.L.L.C. By s/ Gabriel V. Kory___ Gary A. Fadell Gabriel V. Kory 1601 North Seventh Street, Suite 400 Phoenix, Arizona 85006 Attorneys for Defendant Lizarraga

ORIGINAL AND ONE COPY of the 20 foregoing filed this 11th day of October, 2005, with:
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Clerk of the United States District Court

COPY of the foregoing mailed on this 24 11th day of October, 2005 to:
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Jay Jeffers 26 P.O. Box 2610 Florence, Arizona 85232 27 Pro Per
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John T. Masterson, Esq. JONES, SKELTON & HOCHULI, P.L.C. 3 2901 North Central Avenue Phoenix, Arizona 85012 4 Attorneys Defendants Tanya (Williams) 5 Grant, Joseph Ortega, and Rebecca L. Spurlock
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By s/ Cindy M. Lavin

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CERTIFICATE OF SERVICE

I hereby certify that on October 11, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants:
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John T. Masterson [email protected], [email protected] I hereby certify that on October 11, 2005, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System: Jay Jeffers, Jr. Pinal County Jail P.O. Box 2610 Florence, Arizona 85232

s/ Cindy M. Lavin

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