Rhodes v. Chavez et al

Filing 42

ORDER, the motion to dismiss 19 is granted; Defendants' motion for summary judgment 35 is found to be moot; the Clerk shall terminate this action. Signed by Judge David G Campbell on 10/25/13.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Thomas Rhodes,
Plaintiff,

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No. CV-12-01971-PHX-DGC
ORDER

v.
Ricardo E. Chavez, et al.,
Defendants.

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Defendants have filed a motion to dismiss. Doc. 19. They argue that Plaintiff

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David Rhodes’ complaint is barred by the statute of limitations and fails to state a claim,

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and that the Court lacks personal jurisdiction over Defendants Johnson and Watts. The

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motion is fully briefed and no party has requested oral argument. For the reasons set

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forth below, the Court will grant the motion.

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I.

Background.

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Plaintiff David Rhodes received early release from an 11-year sentence on

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October 24, 1990, with 1,681 days remaining. Doc. 18 ¶ 8. On July 30, 1991, the United

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States Parole Commission (“USPC”) issued a warrant for Plaintiff’s arrest based on

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violation of his early release terms due to newly filed federal drug charges. Id. ¶ 9.

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United States Marshals eventually arrested Plaintiff pursuant to the new charges and the

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USPC warrant. On October 31, 1991, the USPC issued a Notice of Action placing the

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USPC warrant on detainer pending disposition of the new charges. Id. ¶ 11. The United

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States District Court for the District of Wyoming sentenced Plaintiff to 20 years for the

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new drug charges on August 12, 1993. The court granted Plaintiff credit for time served

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since his arrest on September 23, 1991, through the day before the sentencing, which

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yielded a projected release date of February 25, 2009. Id. ¶ 13.

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On May 2, 1996, the USPC issued a Notice of Action stating that Plaintiff would

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receive credit on his release violation from the date of the original arrest. Doc. 18 ¶ 17.

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A new sentence computation was completed for the release violation term of 1,681 days,

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giving Plaintiff credit for time served back to the September 23, 1991 arrest. Credit for

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the time served was erroneously removed, however, from the 20-year drug sentence that

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had been imposed by the District Court, and Plaintiff’s release date for the drug offense

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was changed to March 2, 2011. Id. Plaintiff sought administrative remedies and filed

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habeas petitions seeking credit for the prior custody time against the 20-year drug

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sentence, but his efforts were unsuccessful. Doc. 18 ¶¶ 21-23. He was released from the

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Federal Correctional Institution in Phoenix on September 20, 2010. Doc. 29 at 5. He

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filed this Bivens action on September 17, 2012.

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II.

Statute of Limitations.

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Federal law determines when a Bivens claim accrues, but the law of the forum

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state determines the statute of limitations for such a claim. See Pesnell v. Arsenault, 543

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F.3d 1038, 1043 (9th Cir. 2008) (quoting Papa v. United States, 281 F.3d 1004, 1009 (9th

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Cir. 2002)). A Bivens claim accrues “when the plaintiff knows or has reason to know of

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the injury.” Safouane v. Hassett, 514 Fed.App’x 691, 692 (9th Cir. 2013) (quoting W.

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Ctr. For Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000)). The forum

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state’s personal injury statute of limitations applies to Bivens claims. See Van Strum v.

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Lawn, 940 F.2d 406, 410 (9th Cir. 1991). Tolling provisions for Bivens claims are also

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borrowed from the forum state. See Pesnell, 542 F.3d at 1043 (quoting Papa. 281 F.3d at

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1009).

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In Arizona, the statute of limitations for personal injury claims is two years.

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A.R.S. § 12-542. Defendants argue that the limitations period expired before Plaintiff

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filed his complaint because “[a]ll actions of the individual defendants alleged in the

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[c]omplaint occurred on or before November 24, 2009.” Doc. 19 at 3. Because Plaintiff

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knew of his injuries in November 2009, the government argues, the limitations period for

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the Bivens action expired in November 2011.

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The government is correct. Although Arizona has a tolling statute which suspends

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the running of the statute of limitations in favor of persons with certain disabilities,

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imprisonment is not listed as a qualifying disability. A.R.S. § 12-502. Indeed, “[t]he

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current version of [A.R.S. § 12-502] omits reference to imprisonment altogether and no

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longer recognizes imprisonment as a legal disability. Plaintiff has cited no authority, and

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the court is unaware of any, construing the current version of § 12-502 to toll claims

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based on a plaintiff’s imprisonment.” West v. City of Mesa, 2012 WL 2977309, *3 (D.

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Ariz. July 20, 2012). Because Plaintiff filed his complaint on September 17, 2012, more

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than two years after he became aware of his injuries, the complaint is time-barred.

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Plaintiff asserts that his Bivens action did not accrue until June 25, 2012, when the

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Supreme Court denied certiorari on his petition for a writ habeas corpus. Doc. 28 at 2.

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Plaintiff argues that “[n]o Bivens lawsuit could have been filed earlier during the period

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that the habeas petition was being litigated because . . . a Bivens action cannot be filed to

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challenge the correctness or duration of a prison sentence by a prisoner.” Id. Plaintiff’s

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argument appears to arise from a misreading of Heck v. Humphrey, 512 U.S. 477 (1994).

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Heck holds that “in order to recover damages for allegedly unconstitutional conviction or

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imprisonment, or for other harm caused by actions whose unlawfulness would render a

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conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or

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sentence has been reversed on direct appeal, expunged by executive order, declared

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invalid by a state tribunal authorized to make such determination, or called into question

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by a federal court’s issuance of a writ of habeas corpus[.]” Id. at 486-87. “Heck’s

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requirements apply equally to suits brought under Bivens.”

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Fed.App’x 725, 726 (9th Cir. 2004).

Jones v. Shields, 107

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Plaintiff’s reliance on Heck is misplaced. Plaintiff’s claim does not challenge the

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validity of his convictions for the drug charge or the early release violation, nor does it

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challenge the 20-year sentence imposed in the drug case or the 1,681 days he received for

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the early release violation. Plaintiff instead claims that an error occurred when the credit

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for time served given as part of the 20-year sentence was mistakenly dropped in a

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subsequent administrative calculation. Because success on this charge would not “imply

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the invalidity of his conviction or sentence,” it is not barred by Heck. 512 U.S. at 486.

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As a result, Heck did not prevent Plaintiff from bringing this Bivens claim during the

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pendency of his habeas corpus petition. His claim therefore accrued in November of

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2009 and is barred by the applicable two-year statute of limitations.

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IT IS ORDERED:

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The motion to dismiss (Doc. 19) is granted.

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2.

Defendants’ motion for summary judgment (Doc. 35) is found to be moot.

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3.

The Clerk shall terminate this action.

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Dated this 25th day of October, 2013.

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