John Doe v. Kaweah Delta Hospital

FILED
NOT FOR PUBLICATION MAY 23 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JOHN DOE, No. 11-15197

Plaintiff - Appellant, D.C. No. 1:08-cv-00118-AWI-
SKO
v.

KAWEAH DELTA HOSPITAL; et al., MEMORANDUM *

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief Judge, Presiding

Submitted May 15, 2012 **

Before: CANBY, GRABER, and M. SMITH, Circuit Judges.

John Doe appeals pro se from the district court’s summary judgment in his

42 U.S.C. § 1983 action alleging that defendants’ public disclosure of his medical

information violated his right to privacy and various state laws. We have

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s grant

of summary judgment and its statute of limitations determination. Hernandez v.

Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). We may affirm on any

ground supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th

Cir. 2008). We affirm in part, reverse in part, and remand.

The district court granted summary judgment on the ground that Doe’s

claims were barred by the statute of limitations. Viewing the evidence in the light

most favorable to Doe, he learned of Breseman’s latest disclosure of his medical

information in fall 2005. Doe then filed an administrative claim on October 10,

2007, possibly within the two-year limitations period. See Canatella v. Van De

Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007) (forum state’s statute of limitations for

personal injury actions, which is two years in California, applies to § 1983 claims);

O’Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1147 (9th Cir. 2002) (the statute

of limitations accrues when plaintiff knows or reasonably should know of the

existence and cause of his injury).

Because defendants Kaweah Delta Hospital and Kaweah Delta Healthcare

District had timely notice of the administrative action, we reverse and remand so

that the district court may consider whether Doe brought his administrative claim

within the limitations period, and whether Doe is entitled to equitable tolling of his

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§ 1983 claim against these defendants. See Canatella, 486 F.3d at 1132 (forum

state’s tolling laws apply to § 1983 claims unless they are inconsistent with federal

law); Lucchesi v. Bar-O Boys Ranch, 353 F.3d 691, 696 (9th Cir. 2003) (discussing

equitable tolling of a § 1983 claim following the filing of an administrative claim).

However, we affirm summary judgment as to defendant Breseman because

there is no evidence that she had timely notice of Doe’s claims against her. See

Cal. Rest. Mgmt. Sys. v. City of San Diego, 126 Cal. Rptr. 3d 160, 169 (Ct. App.

2011) (discussing timely notice requirement for equitable tolling under California

law).

Doe’s remaining contentions are unpersuasive.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, nor arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

The parties shall bear their own costs on appeal.

AFFIRMED in part; REVERSED in part; and REMANDED.

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