United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, District Judge.
This is a 42 U.S.C. § 1983 action filed pro se by Plaintiff Bobby Lee Hillman, a prisoner in the custody of the Oregon Department of Corrections ("ODOC") and housed at the Snake River Correctional Institution ("SRCI"). Mr. Hillman claims that the deliberate indifference of certain ODOC and SRCI officials ("Defendants") to his need for medical treatment constitutes a continuing violation of his Eighth Amendment rights. Defendants move for judgment on the pleadings , arguing that Mr. Hillman's claim is barred by the statute of limitations and that he has failed to exhaust his administrative remedies. Moreover, Defendants ask that I dismiss Mr. Hillman's claims with prejudice since he has had prior opportunities to address the deficiencies in his complaint. Because Mr. Hillman has adequately plead his claim, and because Mr. Hillman has a right to fair notice before I enter summary judgment, I deny Defendants' motion .
Mr. Hillman states that on or about November 2008 he incurred two injuries while in custody: (1) serious damage to his left eye caused by striking his face on the sink and toilet while having a seizure; and (2) an injury to his back or spine, right knee and right foot incurred while playing basketball. Mr. Hillman alleges that despite his repeated requests for medical attention, Defendants unreasonably delayed or were deliberately indifferent to his need for medical treatment. He alleges the resulting delay exacerbated his injuries, which remain painful.
Mr. Hillman filed his original complaint on September 23, 2013. After filing their answer, Defendants moved for judgment on the pleadings, arguing that Mr. Hillman's claim was untimely since it was filed beyond the two-year statute of limitations. See O.R.S. § 12.110 (2014). I granted Defendants' motion on the grounds that Mr. Hillman failed to specify an act of medical delay or deliberate indifference within the limitations period, but allowed Mr. Hillman to amend his complaint to properly plead a continuing violation. Specifically, I indicated that Mr. Hillman's claims would be timely if he were able to: (1) "list a specific date... 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, " and (2) "allege that the Defendants' specific acts of delay or indifference are so related as to constitute a continuing violation of his 8th Amendment rights." Op. and Order  at 4.
Mr. Hillman's amended complaint lays out timelines for both his eye injury and his lower back injury. Both of these timelines include incidents within the proper limitations period in which he complained of pain to prison officials. Mr. Hillman concludes his amended complaint by alleging that these incidents demonstrate that he repeatedly requested medical attention and that this attention was denied in violation of his Eighth Amendment rights. Am. Compl.  at 6.
Defendants now move for judgment on the pleadings again, arguing that Mr. Hillman has not cured the deficiencies of his original complaint and that Mr. Hillman has not exhausted his administrative remedies.
Federal Rule of Civil Procedure ("Rule") 12(c) states that "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." "Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir.1990) (citing Doleman v. Meiji Mutual Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984)). All allegations of fact by the party opposing the motion are accepted as true and are construed in the light most favorable to that party. Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989). To survive a motion for judgment on the pleadings, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1062 n.4 (9th Cir. 2011) (explaining that although Iqbal establishes the standard for deciding a Rule 12(b)(6) motion, the same standard of review applies to motions brought under Rule 12(c)). In considering a motion for judgment on the pleadings, the court may not rely on evidence outside the pleadings. Hal Roach Studios, 896 F.2d at 1550 (citations omitted).
A. Allegation of Wrongful Acts
Defendants first argue that I should grant judgment on the pleadings because Mr. Hillman failed to identify a "wrongful act" within the limitations period that would allow Mr. Hillman to establish a continuing violation. See Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002) ("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") (emphasis added). Defendants cite Hutchinson v. United States for the proposition that to properly plead a wrongful act in the context of deliberate indifference, Mr. Hillman must identify an instance in which Defendants denied, delayed, or intentionally interfered with his medical treatment. See 838 F.2d 390, 394 (9th Cir. 1988). However, Defendants' proffered rule represents only half of the Hutchinson test. In Hutchinson, the Ninth Circuit held that deliberate indifference can manifest itself in two ways: "[i]t may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Id. (emphasis added) (citing Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)). Therefore, to properly plead a wrongful act that would support a continuing violation of his Eighth Amendment Rights, Mr. Hillman must identify an instance where Defendants' either delayed, denied, or intentionally interfered with his medical treatment, or where the medical care provided demonstrates Defendants' deliberate indifference.
In his amended complaint, Mr. Hillman alleges multiple instances within the limitations period on which he requested medical attention regarding his injuries. Am. Compl.  at 2-6 (including, for example, his February 7, 2012, complaint of eye pain and headaches to prison officials and his March 20, 2012, complaint of back pain to a prison doctor). Furthermore, Mr. Hillman alleges that Defendants' denied these requests in violation of his Eighth Amendment rights. Id. at 6. Although Mr. Hillman does not explicitly label any of Defendants' specific acts as unreasonably delayed or deliberately indifferent, Mr. Hillman's two allegations give rise to a reasonable inference that he is challenging Defendants' responses to his requests for medical attention. See Iqbal, 556 U.S. at 678 (explaining that a claim survives a motion to dismiss "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged") (emphasis added); Cafasso, 637 F.3d at 1062 n.4 (explaining that although Iqbal establishes the standard for deciding a Rule 12(b)(6) motion, the same standard of review applies to motions brought under Rule 12(c)).
The strength of this inference is further bolstered by the context of Mr. Hillman's amended complaint and the underlying fact that Mr. Hillman is a pro se prisoner litigant. The Ninth Circuit has instructed courts to give pro se prisoner pleadings the benefit of a liberal construction, Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010), and to use "common sense" in interpreting the frequently diffuse pleadings of pro se complainants. McKinney v. De Bord, 507 F.2d 501, 504 (9th Cir. 1974). Mr. Hillman filed his amended complaint in response to an Opinion and Order that specifically directed him 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 ...