Ellis v. City of San Diego, Cal.

• Decision Date: 14 May 1999
• Docket Number: No. 97-55649,97-55649
• Citation: 176 F.3d 1183
• Parties: 99 Cal. Daily Op. Serv. 3522, 1999 Daily Journal D.A.R. 4525, 1999 Daily Journal D.A.R. 6407 Terrence Lenon ELLIS, Plaintiff-Appellant, v. CITY OF SAN DIEGO, CALIFORNIA; Mayor Susan Golding, San Diego Police Department; Jerry Sanders, Chief of Police; John Doe # 1; M. Shaw; Baines; D. Johnson; B. Hubble; D. Leach; L. McEuen; A. Linardi; Hartson Ambulance Company; John Doe # 2; University of California San Diego (U.C.S.D.) Medical Center; K.B. Van Hoesen; and Annette "Doe", Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1183

176 F.3d 1183

99 Cal. Daily Op. Serv. 3522, 1999 Daily

Journal D.A.R. 4525,

1999 Daily Journal D.A.R. 6407

Terrence Lenon ELLIS, Plaintiff-Appellant, v. CITY OF SAN DIEGO, CALIFORNIA; Mayor Susan Golding, San

Diego Police Department; Jerry Sanders, Chief of Police;

John Doe # 1; M. Shaw; Baines; D. Johnson; B. Hubble;

D. Leach; L. McEuen; A. Linardi; Hartson Ambulance

Company; John Doe # 2; University of California San Diego

(U.C.S.D.) Medical Center; K.B. Van Hoesen; and Annette

"Doe", Defendants-Appellees.

No. 97-55649.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 6, 1998.

Filed May 14, 1999.

Terence Lenon Ellis, San Diego, California, in pro se, for the plaintiff-appellant.

Paul G. Edmonson, Deputy City Attorney, San Diego, California, and Thomas E. Lotz, Harrington, Foxx, Dubrow & Canter, San Diego, California, for the defendants-appellees.

Brian T. Hackley, Hack, Shaw & Hackley, San Diego, California, for appellee Hartson Medical Services.

Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CV-96-00764-MLH.

Before: BRIGHT, ^* REINHARDT, and RYMER, Circuit Judges.

REINHARDT, Circuit Judge:

Terrence Ellis appeals from an order of the district court dismissing with prejudice his pro se complaint against various defendants for numerous civil rights violations and state-law intentional torts. His action stems from his arrest and a search of his body that occurred on September 11, 1993. Ellis's complaint alleges that he was arrested in his home without a warrant, that the officers used excessive force in effectuating his arrest and that, in conjunction with ambulance and hospital personnel, they violated his rights by restraining him, sedating him into unconsciousness, taking blood from his arms, and inserting a catheter into his penis to extract a urine sample against his will and over his objections. He further alleges that the defendants had no cause or justification for their actions and that they engaged in some of them "simply because he was on parole." The district court dismissed his complaint with prejudice after concluding that the action was barred by the statute of limitations.

Because the district court failed to apply the correct standards for tolling the statutes of limitations, we reverse as to Ellis's federal law claims against all defendants. ¹ Moreover, we conclude that the doctor who allegedly catheterized Ellis against his will is not protected by the tolling and claims provisions contained in California's Medical Injury Compensation Reform Act (MICRA) because the Act does not apply in whole or in part to federal civil rights actions. We decline to consider the doctor's argument, raised for the first time on appeal, that Ellis's action is barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and we reject on the merits her request to dismiss on the basis of qualified immunity.

As to Ellis's state law claims against the ambulance company, a private entity, and its employees, we reverse the district court's dismissal with prejudice and remand with directions that Ellis be permitted to amend his complaint so as to state a claim. We affirm the district court's dismissal with prejudice of the state law claims against the other defendants, all of whom are public entities, officials, or employees because Ellis failed to meet the claims presentation requirements of California law.

I. Facts

Because the district court granted the defendants' motion to dismiss, we recite the facts as they appear in the complaint. They are, at this point, of course, simply allegations. For purposes of this opinion, however, we must assume them to be true.

On September 11, 1993, Ellis was in his living room drinking a beer when three San Diego police officers arrived in response to a domestic disturbance call, entered his home and ordered him to put down his beer and come outside. Ellis told one of the officers that he was going to finish his beer, and attempted to keep drinking. At that point, one of the officers sprayed him with "pepper mace" while two others choked him and bent his arms back further than necessary, in order to inflict pain, while applying handcuffs. Once handcuffed, Ellis was led out of his home by the police and placed in the back of a squad car. After he was seated in the car, an officer said to Ellis, "your sister says, you do cocaine, do you shoot it, or just smoke it?" Ellis did not, of course, allege that his sister actually said this or anything like it to the police, or even that he heard any statement of any kind by her. Ellis responded only that he wanted to speak to a lawyer.

After Ellis had been held in the back of the squad car for approximately half an hour, he asked the police what was taking so long. He was told that the officers were investigating possible charges against him. Another half-hour later, an ambulance from defendant Hartson Ambulance Company ("Hartson") arrived, and Ellis was transferred, still handcuffed, to the ambulance by the police and the ambulance attendants. In the ambulance, he was "strapped down to a wheeled gurney," and on his arrival at University of California San Diego Medical Center, he was taken into an "operating area."

When he was unstrapped from the gurney, Ellis protested that he would not consent to any tests and began to struggle. The police and ambulance attendants then forcefully restrained him and tied him to the table. A nurse, "Annette Doe," entered the room, and Ellis informed her that he did not consent to any tests. The nurse began questioning him about his medical background. He refused to answer, and again protested that he did not consent to any tests or procedures. One of the officers told Ellis that "your (sic) a suspected drug addict, so we don't need your permission."

Annette then returned with a syringe. Ellis asked her not to inject him, but she ignored him and administered a tranquilizer. He was revived six hours later; his arms were "sore and had blood spots on them where the medical persons had taken his blood." When he awoke, Ellis's pants and underpants were pulled down to his ankles and there was tubing in his penis, which had been inserted by Dr. Karen Van Hoesen ("Van Hoesen") while he was sedated. Nurse Annette then held Ellis's penis with her left hand and "snatched the tubing out of [his] penis with her right hand which caused [him] excruciating pain and caused [him] to urinate on himself." Eventually, Ellis was handcuffed and returned to the patrol car, where he was given his Miranda rights and told that he was charged with numerous offenses including being under the influence of a controlled substance.

At the time these events occurred, Ellis was on parole; thereafter his parole was revoked and he was reincarcerated. In a Declaration attached to his complaint, Ellis states that he "remained in custody" following the incident for almost two years. Seven months following his release, on April 29, 1996, Ellis brought suit against the City of San Diego, its mayor, its police department, eight police employees, The University of California at San Diego (U.C.S.D.), Van Hoesen, the nurse, and Hartson Ambulance and two of its employees. Ellis specifically alleges that Van Hoesen and the nurse are employees of either the University or the City of San Diego, and that all of the defendants acted under color of state law.

Ellis asserts numerous violations of his rights under the federal Constitution; he also alleges a number of state law claims that are essentially for intentional torts but are incorrectly pleaded as violations of the California Penal and Health and Safety Codes. He seeks declaratory and injunctive relief as well as $125,000,000 in damages.

On March 20, 1997, in response to motions to dismiss filed by most of the defendants, the district court dismissed all of Ellis's claims with prejudice as to all defendants. ² The court found, correctly that the applicable statute of limitations for § 1983 claims is one year, borrowing the California statute of limitations for personal injury suits. The court was erroneously advised, however, by counsel for the City of San Diego, that California's amendment of its Code of Civil Procedure effective January 1, 1995 served to completely "eliminate any tolling provisions for prisoners." On the basis of that erroneous advice, the court concluded that Ellis's claims were time-barred. On March 24, Ellis, unaware that the court had already dismissed his case, filed a supplemental brief in opposition to one of the motions to dismiss, in which he argued, correctly, that the revised California tolling statute, in particular California Civil Procedure Code § 352.1, tolled the statute of limitations during his period of incarceration up to a maximum of two years.

Although the City defendants do not contest appellate jurisdiction, both Van Hoesen and Hartson contend that Ellis's appeal is untimely. Ellis, who was again in custody at the time he filed the appeal, asserts that on March 28, 1997, he gave a notice of appeal to the prison authorities for mailing. The clerk's record confirms that on March 29, 1997, he sent a notice of appeal to the district court with a letter requesting file-stamped copies. It is not clear what happened next, but evidently Ellis's notice was not filed promptly, and on April 10, 1997, he wrote to the clerk of this court, asking whether his notice of appeal had, in fact, been filed and enclosing another copy. That copy was forwarded to the district court, which filed it on April 16, 1997. Ellis's original notice of appeal later reappeared and was filed in the Clerk's Office on April 24, 1997.

II. Standard of Review

We review de novo the district court's dismissal of Ellis's action on statute of limitations grounds. Cabrera v. City of Huntington Park, 159 F.3d 374, 378 (9th Cir.1998) (cit...