Garrett Deetz v. Charles Ryan ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARRETT J. DEETZ, No. 20-15015
Plaintiff-Appellant, D.C. No. 2:19-cv-00966-DJH
v.
MEMORANDUM*
CHARLES L. RYAN, Former director of
the Arizona department of corrections,
individually; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Submitted December 9, 2020**
San Francisco, California
Before: BOGGS,*** M. SMITH, and BENNETT, Circuit Judges.
Garrett Deetz appeals the district court’s order granting summary judgment to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Defendants Corizon Health, Inc. and various officials within the Arizona
Department of Corrections on Deetz’s 42 U.S.C. § 1983 claim alleging violation of
the Eighth Amendment. We affirm.
Because the parties are familiar with the facts, we do not recount them here,
except where necessary to provide context. We review a grant of summary judgment
de novo. L.F. v. Lake Wash. Sch. Dist. #414, 947 F.3d 621, 625 (9th Cir. 2020).
Deetz’s claims arise out of his diagnosis with hepatitis C while incarcerated
between 2008 and 2016. He claims that prison officials denied him accurate
information about—and treatment for—his hepatitis infections, forming the basis of
an Eighth Amendment deliberate-indifference claim. Deetz filed his complaint on
February 12, 2019. Applying the continuing-violation doctrine, the district court
held that Deetz’s claim accrued on December 8, 2016, the date he was released from
incarceration. The district court therefore dismissed the complaint as outside the
two-year statute of limitations for claims under 42 U.S.C. § 1983.
As the district court recognized, the Ninth Circuit has not adopted the
continuing-violation doctrine in the context of Eighth Amendment medical-care
claims under § 1983, though other circuits and many district courts in our circuit
have. See Herrington v. Bristol, No. 2:16-cv-00680-AC, 2019 WL 7598855, at *15
(D. Or. July 29, 2019) (collecting cases). But, as the district court further noted, the
continuing violation doctrine would extend accrual of Deetz’s claim only until his
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release.
To extend the accrual of Deetz’s claim beyond the date of his release, to the
date on which he received medical advice on his conditions from a doctor outside
the correctional facility, Deetz argues that he should also benefit from the discovery
rule or the fraudulent-concealment doctrine. But Deetz’s invocations of the
discovery rule and the fraudulent-concealment doctrine fail because his complaint
does not provide any facts sufficient to conclude that he could not have discovered
the basis of his claim before February 2017 or that Defendants concealed this
information from him. See Lyons v. Michael & Associates, 824 F.3d 1169, 1171
(9th Cir. 2016). Therefore, “even assuming that the continuing-violation doctrine
applies, [Plaintiff] does not allege sufficient facts within the statute of limitation to
satisfy this doctrine.” Chestra v. Davis, 747 F. App’x 626, 627 (9th Cir. Jan. 10,
2019).
AFFIRMED
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