Christopher Poulain v. G. Gulick , 700 F. App'x 736 ( 2017 )

FILED
NOT FOR PUBLICATION
NOV 02 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER PAUL POULAIN, No. 15-35645
Plaintiff-Appellant, D.C. No. 3:09-cv-01119-AC
v.
MEMORANDUM*
G. GULICK, Dr.; STEVE SHELTON, Dr.;
MARK NOOTH; MAX WILLIAMS,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted June 6, 2017
Portland, Oregon
Before: GOULD and RAWLINSON, Circuit Judges, and BURNS,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
Christopher Paul Poulain (Poulain) appeals from the district court’s grant of
summary judgment in favor of Defendants on the basis that his action brought
under 42 U.S.C. § 1983 was untimely.
The district court did not err in granting summary judgment on Poulain’s §
1983 action because no material issue of fact existed regarding when Poulain
discovered his injury. Poulain’s injury accrued on February 21, 2007, when he
learned that the removed growth was benign. See Bonneau v. Centennial Sch. Dist.
No. 28J, 666 F.3d 577, 581 (9th Cir. 2012) (holding that a “cause of action accrues
when the plaintiff knows or has reason to know of the injury.”) (citation and
internal quotation marks omitted). Poulain’s assertion that he learned of the injury
when an unidentified nurse informed him that a doctor might have foregone
conducting a biopsy because the procedure is “expensive and time consuming,”
misses the mark. The nurse’s statement might serve as evidence of Defendants’
deliberate indifference, however, evidence of deliberate indifference is not the
same as accrual of an action. See Lukovsky v. City & Cty. of San Francisco, 535
F.3d 1044, 1050 (9th Cir. 2008) (clarifying that the cause of action accrues when
the injury occurs rather than when the consequences of the action are “fully felt.”)
Poulain conceded that his action was untimely. However, Poulain asserts
that he is entitled to equitable tolling because he was proceeding pro se and had
2
restricted access to the law library. But these circumstances are not
“extraordinary,” as is required for equitable tolling. Credit Suisse Sec. LLC v.
Simmonds, 132 S. Ct. 1414, 1419 (2012) (applying the statute of limitations).
A pro se petitioner’s lack of legal sophistication is not, by itself, an
extraordinary circumstance warranting equitable tolling. See Ford v. Pliler, 590
F.3d 782, 789 (9th Cir. 2009). Additionally, we have explained that “[o]rdinary
prison limitations on [a plaintiff’s] access to the law library” are “neither
extraordinary,” nor do they make it “impossible for him to file his petition in a
timely manner.” Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (internal
quotation marks omitted). Poulain faced conditions typical of prison life, and any
restrictions placed on his ability to prosecute his claim were not “extraordinary”
such that equitable tolling is appropriate. See id. (holding that a plaintiff was not
entitled to equitable tolling “simply because he remained in administrative
segregation and had limited access to the law library and copier” and
distinguishing such circumstances from the “denial altogether of access to his
personal legal papers.”).
Because Poulain has not shown that extraordinary circumstances prevented
him from timely filing a complaint, it is unnecessary to determine whether
equitable tolling is appropriate under Oregon law.
3
AFFIRMED.
4