United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, District Judge.
Plaintiff Bobby Lee Hillman contends that prison officials denied him prompt and adequate medical care or were deliberately indifferent to his need for medical treatment, resulting in further personal injury. Defendant prison officials moved for judgment on the pleadings , and Mr. Hillman responded [35-37]. Having concluded that Mr. Hillman fails to allege a specific date of delay or indifference within the limitations period, I GRANT the Defendants' motion without prejudice.
Mr. Hillman is an inmate at Oregon's Snake River Correctional Institution. (Compl.  at 3). On or about 2008, Mr. Hillman experienced a seizure which caused him to fall and strike his face on the metal sink and toilet in his cell. Id. at 5. The fall caused serious injury to his left eye, requiring two surgeries to partially correct the damage. (Memo.  at 2). Mr. Hillman argues the Defendants failed to provide adequate follow-up treatment for this injury despite his repeated requests, exacerbating the underlying injury and causing further damage. (Aff. of Pl.  at 1).
Mr. Hillman also alleges that in 2008 he injured his back or spine, right foot and right knee during a basketball game with fellow inmates (Compl.  at 9, 22). He states the Defendants failed to provide adequate treatment for these injuries, as well as his eye injury, despite his repeated requests. Id. at 13.
Mr. Hillman filed a civil complaint  on September 23, 2013, under 42 U.S.C. § 1983. Defendants moved for judgment on the pleadings  pursuant to Fed.R.Civ.P. 12(c), arguing the two-year statute of limitations bars any claim based on incidents occurring before September 23, 2011. (Mot.  at 6). Mr. Hillman argues in his response that the statute did not begin to run until he learned the full extent of his injuries in 2014. (Resp.  at 3). He concurrently filed a memorandum in support of his response in which he argues the Defendants' unnecessary delay or indifference to his need for medical treatment constitutes a continuing violation of his 8th Amendment rights. (Memo.  at 1). The Defendants did not file a reply.
Judgment on the pleadings is proper when, taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law. Fajardo v. Cnty. of Los Angeles, 179 F.3d 698, 699 (9th Cir. 1999).
1. The Continuing Violation Doctrine
A continuing violation or continuing tort occurs when a series of wrongful acts of the same nature causes the alleged harm, rather than attributing the harm to a specific act within the larger pattern of wrongful conduct. Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002) (citing Page v. United States, 729 F.2d 818, 821 (D.C. Cir. 1984)). The statute of limitations for continuing violations does not begin to run until the wrongful conduct ends. Id. Therefore, if the conduct in question-here, medical delay or the Defendants' deliberate indifference to Mr. Hillman's medical needs-was ongoing at some point within the limitations period, Mr. Hillman's claim is timely.
Ninth Circuit and Oregon District Court precedent supports this finding. The Ninth Circuit held the continuing violation doctrine applies to Section 1983 claims. Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001). Furthermore, although the Ninth Circuit has not specifically applied the continuing violation doctrine to 8th Amendment deliberate indifference claims, other circuits have done so, as well as this court. Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001) (finding the alleged failure to treat an inmate's hernia was a "series of wrongful acts" creating a "series of claims"); McLean v. Shelton, No. 3:11-cv-01535-AC, 2013 WL 3994760 (D.Or. Aug. 2, 2013). In McLean v. Shelton, this court found a medical indifference claim should survive a Rule 12(c) motion where the plaintiff showed he requested medical attention within the limitations period for a condition that developed after the statute had lapsed. Id. at *8. Thus his claim was timely.
As Mr. Hillman states, he must allege the Defendants acted in furtherance of a policy of indifference within the limitations period in order for his complaint to be timely. (Memo.  at 1). Taking his allegations as true, Mr. Hillman's pleadings fail to clearly specify such a date. For this reason, the Defendants' motion for judgment on the pleadings is granted without prejudice. Mr. Hillman may amend his complaint to list a specific date, if any, between September 23, 2011 and September 21, 2013 on which he believes the Defendants unreasonably delayed or acted with deliberate indifference towards his need for medical treatment. He must also allege that the Defendants' specific acts of delay or indifference are so related as to constitute a ...