Unpublished Disposition, 886 F.2d 1321 (9th Cir. 1987)

No. 88-1934.

United States Court of Appeals, Ninth Circuit.

Before GOODWIN, Chief Circuit Judge, REINHARDT, Circuit Judge, and A. WALLACE TASHIMA,^**  District Judge.

MEMORANDUM^*** 

This is a state prisoner's action against numerous state officials under 42 U.S.C. § 1983 for asserted deprivation of numerous constitutional rights. After leave to amend twice, the district court dismissed appellant's third amended complaint as untimely and for failure to state a claim. We affirm on all claims save one. We reverse on the claim for failure to render medical assistance.

We review dismissals under F.R.Civ.P. 12(b) (6) de novo, Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988), including dismissals based on the bar of the statute of limitations. Galindo v. Stoody Co., 793 F.2d 1502, 1508 (9th Cir. 1986).

Because a number of appellant's claims are barred by the statute of limitations, we need not engage in a detailed analysis of his allegations. Suffice it to state that he alleges he was beaten by prison guards and subjected to further deprivation of rights in 1983. The complaint herein was filed on February 17, 1987. Under Wilson v. Garcia, 471 U.S. 261, 280 (1985), the applicable statute of limitations for Sec. 1983 claims is two years. Ariz.Rev.Stat. Sec. 12-542. Also, prior to appellant filing his complaint, ARS Sec. 12-502 had been amended to provide for the tolling of prisoners' claims only until the prisoner discovers or should have discovered the right to bring the action. ARS Sec. 12-502(b).

Under these rules, appellant's claims for asserted deprivation of his constitutional rights in 1983 are untimely and were properly dismissed.¹ 

With respect to claims which are alleged to have occurred within the limitations period, we conclude that all but one fail to state claims on which relief can be granted. None, save the claim asserting denial of medical care, rise to the level of a constitutional deprivation.²  Construing, as we must, the claim of failure to render medical care most liberally in favor of the pleader, e.g., Baker v. McNeil Island Corrections Center, 859 F.2d 124, 127 (9th Cir. 1988), we cannot say that, under these allegations, appellant can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). We conclude that appellant has sufficiently given notice of an Eighth Amendment claim of deliberate indifference to his serious medical needs.³  Estelle v. Gamble, 429 U.S. 97, 104 (1976); Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

The judgment of the district court is AFFIRMED in all respects, except with respect to the claim alleging the failure to render medical assistance. With respect to the latter claim, the judgment is REVERSED and the matter REMANDED for further proceedings consistent with this Memorandum.