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Gregg v. State of Hawaii

United States Court of Appeals, Ninth Circuit

August 29, 2017

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.

          Argued and Submitted June 15, 2017 Honolulu, Hawaii

         Appeal 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 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.

         SUMMARY[*]

         Civil Rights

         The 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.

         The 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.

         Applying 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 sessions.

          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. ...


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