Alexandria Gregg, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant,
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.
and Submitted June 15, 2017 Honolulu, Hawaii
from the United States District Court for the District of
Hawaii D.C. No. 1:14-cv-00056-JMS-KSC, J. Michael Seabright,
Chief Judge, Presiding
Margery S. Bronster (argued), Andrew L. Pepper, Robert Hatch,
and Anthony Quan, Bronster Hoshibata, Honolulu, Hawaii; Dan
Hempey, Hempey & Meyers, Lihue, Kauai, Hawaii; for
Manulele Gavigan (argued) and Caron M. Inagaki, Deputy
Attorneys General; Douglas S. Chin, Attorney General;
Department of the Attorney General, Honolulu, Hawaii; for
Before: Raymond C. Fisher, Richard A. Paez and Jacqueline H.
Nguyen, Circuit Judges.
panel vacated the district court's dismissal of a 42
U.S.C. § 1983 action brought by a former Hawaii inmate
who alleged that she was psychologically traumatized as a
result of being compelled to undergo sexual shame therapy at
a Hawaii correctional facility, and remanded.
district court held that because plaintiff experienced
feelings of embarrassment and humiliation contemporaneously
with her therapy sessions, her claims accrued on the last
date that the sessions occurred in November 2011. The
district court dismissed plaintiff's Eighth Amendment
claims filed on January 31, 2014 under the applicable
two-year statute of limitations and denied her request for
leave to amend her complaint.
Simmons v. United States, 805 F.2d 1363 (9th Cir.
1986), the panel held that the district court erred in
denying plaintiff leave to amend to try to make a plausible
showing that it was not until January 2012 that she first
became aware of her injuries from her purported treatment in
the therapy program. The panel held that it may be reasonable
for an incarcerated individual who is told she must resurface
past sexual traumas to overcome them to rely on these
assurances, and to view associated feelings of emotional
distress as normal, constructive responses incidental to the
healing process. The panel held that like the plaintiff in
Simmons, plaintiff in this case may be able to
allege facts making it plausible she neither knew nor
reasonably should have known she was injured by the therapy
program until sometime after she stopped participating in the
FISHER, Circuit Judge:
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
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.