Unpublished Disposition, 878 F.2d 1439 (9th Cir. 1989)

MEMORANDUM^* 

Ronald Rogers timely appeals from the denial of his motion for reconsideration in light of new evidence, by which he sought to reopen a judgment of dismissal of his pendent state malpractice claims, and from a grant of summary judgment in favor of the defendants on his claim under 42 U.S.C. § 1983. We affirm.

The district court's denial of appellant's Rule 60(b) motion, for relief from judgment based on the discovery of new evidence, is reviewed for abuse of discretion. Fiester v. Turner, 783 F.2d 1474, 1476 (9th Cir. 1986). A court can grant relief from a final judgment if material, newly discovered evidence could not have been discovered by due diligence in time to move for a new trial. Fed. R. Civ. P. 60(b) (2); see also, Mumford v. Bowen, 814 F.2d 328, 331 (7th Cir. 1986).

The newly discovered 1980 letter, which indicates that Dr. Watter failed to establish written procedures for medical practices at the prison, should have been discovered by exercise of due diligence during the pendency of Rogers' action which spanned from April 1984 to May 1989. Even if we were to find that appellant could not have discovered the evidence, the letter would not have produced a different result as appellant has not specifically alleged that the lack of written procedures actually caused his injuries. We conclude that the district court did not abuse its discretion by denying appellant's motion for relief from the judgment.

Rogers next contends that the district court erred in dismissing his pendent state law malpractice claims as time-barred.¹  We review de novo the judgment of dismissal entered pursuant to Fed. R. Civ. P. 12(b) (6). Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984). The parties agree that the applicable statute of limitations is a California statute which requires a malpractice claim to be filed no more than three years after the date of injury or one year after the plaintiff discovers, or through reasonable diligence should have discovered, the injury, whichever occurs first. Cal.Civ.Proc.Code Sec. 340.5 (West 1982).

The district court properly applied the one-year "discovery rule" under which the statute of limitations begins to run when "the plaintiff is reasonably aware of the negligent cause as well as the physical manifestation of her injury." Zambrano v. Dorough, 179 Cal. App. 3d 169, 172, 224 Cal. Rptr. 323, 325 (1986); see also, Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1110, 751 P.2d 923, 245 Cal. Rptr. 658 (1988) ("Under the discovery rule, the statute begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, and that someone has done something wrong to her.").

The statute began to run in this case by September of 1982 when Rogers was diagnosed by the Department of Corrections as having a "broken neck, a fractured wrist, and lower back injuries." This undisputedly proper diagnosis should have triggered his suspicions as to possible improper treatment. Although Rogers thus had a duty to begin investigation within one year, see Guiterrez v. Mofid, 39 Cal. 3d 892, 897, 705 P.2d 886, 218 Cal. Rptr. 313, 315 (1985), he did not file his complaint until April of 1984. We agree with the district court that Rogers' state law medical malpractice claims are time-barred.

As to his claim under 42 U.S.C. § 1983, Rogers contends that summary judgment for the defendants was improper because there are genuine issues of material fact as to whether the defendants acted with deliberate indifference towards his medical needs. We review de novo this summary judgment, viewing the evidence in a light most favorable to Rogers. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986).

To establish a violation of the eighth amendment prohibition against cruel and unusual punishment, as he must to maintain his action under section 1983, Rogers must show that defendants acted with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). "Deliberate indifference" is much more than mere negligence or mistake and involves the "unnecessary and wanton infliction of pain." Wood v. Sunn, 852 F.2d 1205, 1210 (9th Cir. 1988).

Appellant has failed to establish any specific acts or omissions which sufficiently demonstrate negligence, much less deliberate indifference. Doctor Pieters of the Humboldt Medical Center did not believe x-rays were needed. We are persuaded that neither Dr. Watter's failure to secure x-rays, nor his failure to personally examine Rogers upon arrival at the Humboldt county jail, constitute deliberate indifference. Rogers has also failed to establish deliberate indifference on the part of the physician's assistants who examined him after consultation with Dr. Pieters, prescribed appropriate medications, and referred Rogers to Dr. Watter for further evaluation after learning that Rogers was experiencing decreased sensation. We find it particularly compelling that the prescriptions and treatment Rogers initially received from the medical staff of the Humboldt County Jail, which he claims were "improper," were not materially different from the treatments he later received from Dr. Farnum after he received x-rays and an undisputedly proper diagnosis.² 

The County cannot be liable under section 1983 unless Rogers was deprived of his eighth amendment rights pursuant to a governmental policy or custom. Monell v. Dep't of Social Serv. of N.Y., 436 U.S. 658, 694-95 (1978). This case is clearly distinguishable from Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982). In that case, state prison officials exhibited deliberate indifference because prisoners had no access to medical facilities, and because of the incompetence of the medical personnel. Rogers had full access to competent, medical practitioners and claims only that he received improper treatment. Finally, the argument that Dr. Watter's actions reflected a governmental policy of deliberate indifference is meritless in view of the fact that Dr. Watter's actions did not constitute deliberate indifference towards appellant's medical needs.

AFFIRMED.