Gregg ex rel. Situated v. State

• Decision Date: 29 August 2017
• Docket Number: No. 14-16785.,14-16785.
• Parties: Alexandria GREGG, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. State of HAWAII, DEPARTMENT OF PUBLIC SAFETY; Ted Sakai, in his official capacity as Director of the Department of Public Safety, State of Hawaii; Neal Wagatsuma, in his official capacity as Warden of the Kauai Community Correctional Center, Department of Public Safety, State of Hawaii, and in his individual capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

870 F.3d 883

Alexandria GREGG, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant,

v.State of HAWAII, DEPARTMENT OF PUBLIC SAFETY; Ted Sakai, in his official capacity as Director of the Department of Public Safety, State of Hawaii; Neal Wagatsuma, in his official capacity as Warden of the Kauai Community Correctional Center, Department of Public Safety, State of Hawaii, and in his individual capacity, Defendants-Appellees.

No. 14-16785.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 15, 2017 Honolulu, Hawaii

Filed August 29, 2017

Margery S. Bronster (argued), Andrew L. Pepper, Robert Hatch, and Anthony Quan, Bronster Hoshibata, Honolulu, Hawaii; Dan Hempey, Hempey & Meyers, Lihue, Kauai, Hawaii; for Plaintiff-Appellant.

Marie Manulele Gavigan (argued) and Caron M. Inagaki, Deputy Attorneys General; Douglas S. Chin, Attorney General; Department of the Attorney General, Honolulu, Hawaii; for Defendants-Appellees.

Before: Raymond C. Fisher, Richard A. Paez and Jacqueline H. Nguyen, Circuit Judges.

OPINION

FISHER, Circuit Judge:

Alexandria Gregg learned she had psychological disorders years after she underwent sexual shame therapy sessions at a Hawaii correctional facility. Because Gregg experienced feelings of embarrassment and humiliation contemporaneously with her therapy sessions, the district court held her claims accrued on the last date that the sessions occurred. The district court dismissed her Eighth Amendment claims asserting cruel and unusual punishment and deliberate indifference under the applicable two-year statute of limitations and denied her request for leave to amend her complaint. We address when her claims accrued. Under federal law, a claim accrues when a plaintiff knows or has reason to know of the injury that is the basis of the action and the cause of that injury. See Bonneau v. Centennial Sch. Dist. No. 28J , 666 F.3d 577, 581 (9th Cir. 2012) ; TwoRivers v. Lewis , 174 F.3d 987, 991 (9th Cir. 1999). Here, Gregg may be able to allege she was unaware of her injuries until sometime after she stopped participating in the therapy sessions. See Simmons v. United States , 805 F.2d 1363 (9th Cir. 1986). That is, she may have reasonably viewed the embarrassment and humiliation she felt as the ordinary, and hence not harmful, response to therapy. We hold the district court erred in denying as futile Gregg's request for leave to amend to include new assertions to this effect, and we vacate and remand.

I. Background

A. Factual Allegations

Gregg was periodically incarcerated at the Kauai Community Correctional Center (KCCC) in Hawaii between March and November 2011. Her first amended complaint alleges the following facts about her experience there.

Gregg participated in Life Time Stand (LTS), a program run by Warden Neal Wagatsuma. The program purported to provide "therapy, counseling, and mental health treatment" for women inmates. Those who joined the program and complied with its requirements were housed in less restrictive jail environments. The LTS sessions involved "public sexual shamings." Inmates were forced to stand at a lectern and speak about their sexual histories before large groups of men and women inmates and staff. For example, Warden Wagatsuma asked Gregg "whether she had sex while on drugs," "how many partners [she] previously had sex relations with," and "whether she had been raped." He then "ordered her to elaborate on previous incidents of rape" in which she was the victim. Inmates were required to hold up "sexual photographs" of themselves while Wagatsuma called them "whores." These sessions were videotaped and shown to the broader inmate population.

On one occasion, Wagatsuma showed a scene from the film Irreversible (StudioCanal 2002) depicting the anal rape of a young woman at knife point. Film critic Roger Ebert described the scene as "so violent and cruel that most people will find it unwatchable."

These experiences "humiliated, embarrassed, and violated" Gregg, causing her to request a transfer to a different correctional facility. After her request was granted, Gregg remained incarcerated at a separate facility from November 2011 until her release from custody in May 2012. By the time she filed her complaint, Gregg had become "psychologically, emotionally, and physically traumatized" by her participation in the program.

B. Procedural History

Gregg filed her original class action complaint under 42 U.S.C. § 1983 on January 31, 2014. Her first amended complaint alleges, as relevant here, claims for cruel and unusual punishment and deliberate indifference to substantial risk of serious harm under the Eighth Amendment.¹

The defendants moved under Rule 12(b)(6) to dismiss and under Rule 12(c) for judgment on the pleadings, arguing Gregg's claims were untimely. Gregg subsequently sought leave to amend her first amended complaint to include new factual allegations, submitting a pair of declarations in support. In the first, Gregg said she "remained unaware of [her] injuries until well after [her] release [from custody] in May of 2012." After her release, she began to consult therapists to help process her experience. Toward the end of 2012, she met a former KCCC therapist who encouraged her to seek professional psychological help. Gregg followed this advice and, in early 2014, began to see Fran Tyson-Marchino, a therapist who diagnosed Gregg with "traumatic experience and adjustment disorders" caused by her participation in the LTS program. In the second declaration, Tyson-Marchino stated her professional opinion that Gregg's psychological conditions were "directly attribut[able] ... to the trauma and sexual egregious acts Ms. Gregg experienced while she was incarcerated."

The district court granted the defendants' motions to dismiss and for judgment on the pleadings. Because the first amended complaint alleged Gregg experienced feelings of embarrassment and humiliation contemporaneously with her participation in the LTS program, the court concluded her claims—brought two years and two months after the sessions ended—were untimely under the applicable two-year statute of limitations. The court ruled Gregg's claims accrued "when she was aware that she suffered injury from Defendants, and the fact that it was not until later that [Gregg] was formally diagnosed and/or that she learned the full extent of injury does not make the accrual date a moving target." The court also denied as futile Gregg's request for leave to amend. This appeal followed.

II. Standard of Review

We review de novo the district court's dismissal of an action on statute of limitations grounds, see Mann v. Am. Airlines , 324 F.3d 1088, 1090 (9th Cir. 2003), accepting all factual allegations in the complaint as true and drawing "all reasonable inferences in favor of the nonmoving party," TwoRivers , 174 F.3d at 991. The allegations must "plausibly suggest an entitlement to relief." Ashcroft v. Iqbal , 556 U.S. 662, 681, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Because a Rule 12(c) motion is "functionally identical" to a Rule 12(b)(6) motion, " ‘the same standard of review’ applies to motions brought under either rule." Cafasso v. Gen. Dynamics C4 Sys., Inc. , 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (quoting Dworkin v. Hustler Magazine Inc. , 867 F.2d 1188, 1192 (9th Cir. 1989) ). A judgment on the pleadings is properly granted when, "taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law." Nelson v. City of Irvine , 143 F.3d 1196, 1200 (9th Cir. 1998).

"When the district court denies leave to amend because of futility of amendment, we will uphold such denial if ‘it is clear, upon de novo review, that the complaint would not be saved by any amendment.’ " Carvalho v. Equifax Info. Servs., LLC , 629 F.3d 876, 893 (9th Cir. 2010) (quoting Leadsinger, Inc. v. BMG Music Publ'g , 512 F.3d 522, 532 (9th Cir. 2008) ).

III. Discussion

The parties agree a two-year statute of limitations applies to Gregg's § 1983 claims. The issue is when her claims accrued. Because Gregg filed her complaint in January 2014, her claims are untimely if they accrued before January 2012. The district court ruled the claims accrued when Gregg stopped participating in the LTS sessions in November 2011. For the reasons that follow, we disagree that this is necessarily the case. If Gregg neither knew nor should have known of her injuries until after January 2012, her claims are timely.

The accrual date of a § 1983 claim is a matter of federal law, "governed by federal rules conforming in general to common-law tort principles." Wallace v. Kato , 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). The general common law principle is that a cause of action accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action and the cause of that injury. See Bonneau , 666 F.3d at 581 ; TwoRivers , 174 F.3d at 991 ; see also TRW Inc. v. Andrews , 534 U.S. 19, 27, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (observing that "lower federal courts generally apply a discovery accrual rule when a statute is silent on the issue" (internal quotation marks omitted)); Bibeau v. Pac. Nw. Research Found. Inc. , 188 F.3d 1105, 1108 (9th Cir. 1999) (as amended) ("[T]he discovery rule has been observed as a matter of federal law."). A plaintiff "must be diligent in discovering the critical facts." Bibeau , 188 F.3d at 1108. A cause of action accrues even if "the full extent of the injury is not then known." Wallace , 549 U.S. at 391, 127 S.Ct. 1091 (quoting 1 C. Corman, Limitation of Actions § 7.4.1, pp. 526–27 (1991)).

The issue here, then, is when Gregg knew, or in the exercise of reasonable diligence should have known, of the injuries forming the basis for her action and their cause. The government argues that, because Gregg's claims are for injuries she sustained from her incarceration at KCCC, which ended in November 2011, her...