                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 9 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAVID M. GARCIA,                                No.    18-17010

                Plaintiff-Appellant,            D.C. No.
                                                2:13-cv-01591-DJH-DMF
 v.

WEXFORD HEALTH SOURCES                          MEMORANDUM*
INCORPORATED,

                Defendant-Appellee,

and

THERESE SCHROEDER, Warden,

                Defendant,

FEY, Deputy Warden of Santa Rita Unit;
CHILDREF, Captain; RICHARD
JOHNSON, Inmate at Santa Rita Unit of the
Tucson Complex; UNKNOWN PARTIES,
named as John and Jane Doe 1-80;
RICHARD PRATT, Director of Division of
Health Services; CORIZON HEALTH
SERVICES; LINDA HAMMER;
THOMAS; LUNDBERG, Deputy Warden;
TUCKER; RYAN, named as Jane Doe
Ryan, wife; THOMAS, named as Jane Doe
Thomas, wife; MOODY, named as Jane Doe
Moody, wife; THOMPSON, named as Jane

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Doe Thompson, wife; RUNGE, named as
Jane Doe Runge, wife; PACHECO, named
as Jane Doe Pacheco, wife; JASSO, named
as John Doe Jasso, husband; PURI, named
as Jane Doe Puri, wife; MITCHELL CRAIG
PATRICK; PATRICK, named as Jane Doe
Patrick, wife; LUKER, named as Jane Doe
Luker, wife; BAKER, named as John Doe
Baker, husband; KOKEMOR, named as
John Doe Kokemor, husband;
MCCUTCHEON, named as Jane Doe
McCutcheon, wife; RAWA, named as Jane
Doe Rawa, wife; CORIZON HEALTH
INCORPORATED; ENDE, named as Jane
Doe Ende, wife; LAWRENCE ENDE;
MINERETTE JASSO; J. KOKEMOR;
LEWIS, named as Jane Doe Lewis, wife;
CAMERON LEWIS; RANDY LUKER;
MCCUTCHEON; CHRIS MOODY;
MARTIN PACHECO; ASHIS PURI;
THOMAS RAWA; RIAZ, named as Jane
Doe Riaz, wife; JAWAD RIAZ; ROJAS,
named as Jane Doe, wife; BRENDA
ROJAS; ROBERT RUNGE; CHARLES L.
RYAN; SMALLEY, named as John Doe
Smalley, husband; CARRIE SMALLEY; C.
THOMAS; IAN THOMPSON; TUCKER,
named as John Doe Tucker; husband;
CAREY TUCKER; BAKER, named as Jane
Doe Baker, wife,

              Defendants.

                Appeal from the United States District Court
                          for the District of Arizona
                Diane J. Humetewa, District Judge, Presiding

                   Argued and Submitted August 7, 2019
                        San Francisco, California

                                     2
Before: O'SCANNLAIN, SILER,** and NGUYEN, Circuit Judges.

      David Garcia appeals from the district court’s order granting summary

judgment to defendant Wexford Health Sources, Inc. (“Wexford”). Because the

facts are known to the parties, we repeat them only as necessary to explain our

decision.

                                         I

      Garcia’s Third Amended Complaint does not relate back to the date on

which he filed his original complaint, because Garcia failed to show that Wexford

had prior notice of the action and that Wexford would not be prejudiced in

defending against the untimely amended complaint. See Fed. R. Civ. P. 15(c)(1);

Ariz. R. Civ. P. 15(c)(2).

                                         II

      Garcia did not set forth “hard evidence” that would be sufficient to allow a

reasonable jury to conclude that he was of “unsound mind” during the limitations

period. Doe v. Roe, 955 P.2d 951, 964 (Ariz. 1998) (en banc). Garcia produced

evidence that might reasonably show that he was of unsound mind after he was

released from prison in 2016. But he did not have sufficient evidence to show that

any such disability was present during the time that matters: the two-year



      **
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

                                         3
limitations period from August 2013 to August 2015. Indeed, Garcia now admits

that his sister “was unable to see” how Garcia functioned while he was in prison,

thus making it “all but impossible” for her to speak to the state of his mind during

that time. Likewise, Dr. Merroto did not examine Garcia during the limitations

period, and his medical reports from 2017 do not speak to Garcia’s level of

functioning more than two years earlier.

       Garcia failed to identify any evidence—perhaps from a fellow inmate, a

prison employee, or a visitor to the prison—of his actual condition during the

limitations period other than records of his own generalized complaints about

memory and concentration problems during that time. These are not the sort of

“specific facts” and “hard evidence” needed to show that Garcia could not

understand his legal rights or manage his daily affairs during the limitations period.

Doe, 955 P.2d at 964; see also Florez v. Sargeant, 917 P.2d 250, 255 (Ariz. 1996)

(en banc) (“If there is hard evidence that a person is simply incapable of carrying

on the day-to-day affairs of human existence, then the statute is tolled. Otherwise

it is not.”).

       Thus, the district court did not err in finding that Garcia’s claims against

Wexford—which were added to his complaint almost two years after the statute of

limitations expired—are time barred.

       AFFIRMED.


                                           4
                                                                           FILED
Garcia v. Wexford Health Sources Inc., 18-17010                             OCT 9 2019
                                                                        MOLLY C. DWYER, CLERK
NGUYEN, Circuit Judge, dissenting in part:                               U.S. COURT OF APPEALS


      I agree that Garcia’s amended complaint does not relate back to the date of

the original complaint’s filing. But in my view, the majority’s finding that his

claims are time-barred is not correct. I therefore dissent from section II of the

majority’s disposition.

      Garcia presented more than enough evidence of his inability to carry on day-

to-day affairs during the statutory limitations period to survive summary judgment.

There’s no dispute that while incarcerated, Garcia suffered severe head injuries

that required two surgeries, including a craniotomy to insert metal plates in his

skull, and a two-month hospital stay. There is also no dispute that his traumatic

brain injury resulted in permanent cognitive impairment. The majority faults

Garcia for failing to present “hard evidence” of his actual condition during the

limitations period, but at this stage, all inferences must be drawn in his favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Garcia presented

contemporaneous records of his own persistent complaints of “problems thinking

clearly,” “trouble focusing on things,” and “a decrease in [his] cognitive ability.”

Garcia experienced “dizziness, imbalance, slurred speech, blurred vision,




                                           1
headaches, [and] nerve pain.” He “need[ed] help to get [his] body and mind back

to a semblance of normal.”

      The declaration of his sister and caregiver, Sylvia Mercado, detailed his

limitations: Garcia’s inability to live on his own, remember to take his blood

pressure medication, manage his finances, buy groceries, make doctor’s

appointments, remember doctor’s orders, remember his vocabulary, have an adult

conversation, have a job, or “remember[] day-to-day business needed to survive.”

While her observations are outside the limitations period, their consistency with

the nature of his injury and his cognition impairment is significant. The

undisputed medical records confirm that his cognition impairment is permanent,

with no treatment available. The majority’s conclusion assumes that his cognitive

impairments improved after two brain surgeries while he was in prison, and then

somehow worsened dramatically after his release to become permanent. That

conclusion draws every inference in favor of the defendants.

      I respectfully dissent.




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