Walker v. Gregersen
Filed 7/31/06 Walker v. Gregersen CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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| K. WALKER, Plaintiff and Appellant, v. D. GREGERSEN, Defendant and Respondent. | C051456
(Super. Ct. No. 05AS00737)
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The demurrer of defendant D. Gregersen to the first amended complaint of plaintiff K. Walker was sustained with leave to amend. Walker failed to file a second amended complaint within the time specified by the court; he now appeals pro se from the dismissal of the action. We affirm.
BACKGROUND
Walker's original complaint, filed February 14, 2005, alleges that he is incarcerated at New Folsom State Prison -- Sacramento. While in his cell on March 17, 2001, Walker began to suffer severe stomach pain, causing him to moan and vomit. When he and his cellmate called for help, corrections officer defendant D. Gregersen refused to help him or to call for a stretcher. Walker sought damages from Gregersen on theories he violated Walker's civil rights and constitutional right to be free of cruel and unusual punishment when he delayed medical treatment to Walker, who was suffering from a gallstone.[1]
Gregersen filed his demurrer to the original complaint, asserting Walker's claims are barred by the applicable statutes of limitations. While the demurrer was pending, the court granted Walker's application for leave to file an amended complaint, and Gregersen's demurrer was dropped from the calendar based on the parties' representations that Walker had filed an amended complaint.
In reality, Walker had submitted his amended complaint for filing, but it was returned to him by the superior court because it lacked a case number and a copy of the order allowing amendment.
The parties nonetheless proceeded as though the amended complaint had been filed: Gregersen demurred to the amended complaint on the ground that its claims are time-barred, and Walker filed an opposition to the demurrer, alleging that his depression had deluded him into thinking he had completed things when he had not, and had suffered â€
