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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Thomas Rhodes, Plaintiff, 10 11 12 No. CV-12-01971-PHX-DGC ORDER v. Ricardo E. Chavez, et al., Defendants. 13 14 15 Defendants have filed a motion to dismiss. Doc. 19. They argue that Plaintiff 16 David Rhodes’ complaint is barred by the statute of limitations and fails to state a claim, 17 and that the Court lacks personal jurisdiction over Defendants Johnson and Watts. The 18 motion is fully briefed and no party has requested oral argument. For the reasons set 19 forth below, the Court will grant the motion. 20 I. Background. 21 Plaintiff David Rhodes received early release from an 11-year sentence on 22 October 24, 1990, with 1,681 days remaining. Doc. 18 ¶ 8. On July 30, 1991, the United 23 States Parole Commission (“USPC”) issued a warrant for Plaintiff’s arrest based on 24 violation of his early release terms due to newly filed federal drug charges. Id. ¶ 9. 25 United States Marshals eventually arrested Plaintiff pursuant to the new charges and the 26 USPC warrant. On October 31, 1991, the USPC issued a Notice of Action placing the 27 USPC warrant on detainer pending disposition of the new charges. Id. ¶ 11. The United 28 States District Court for the District of Wyoming sentenced Plaintiff to 20 years for the 1 new drug charges on August 12, 1993. The court granted Plaintiff credit for time served 2 since his arrest on September 23, 1991, through the day before the sentencing, which 3 yielded a projected release date of February 25, 2009. Id. ¶ 13. 4 On May 2, 1996, the USPC issued a Notice of Action stating that Plaintiff would 5 receive credit on his release violation from the date of the original arrest. Doc. 18 ¶ 17. 6 A new sentence computation was completed for the release violation term of 1,681 days, 7 giving Plaintiff credit for time served back to the September 23, 1991 arrest. Credit for 8 the time served was erroneously removed, however, from the 20-year drug sentence that 9 had been imposed by the District Court, and Plaintiff’s release date for the drug offense 10 was changed to March 2, 2011. Id. Plaintiff sought administrative remedies and filed 11 habeas petitions seeking credit for the prior custody time against the 20-year drug 12 sentence, but his efforts were unsuccessful. Doc. 18 ¶¶ 21-23. He was released from the 13 Federal Correctional Institution in Phoenix on September 20, 2010. Doc. 29 at 5. He 14 filed this Bivens action on September 17, 2012. 15 II. Statute of Limitations. 16 Federal law determines when a Bivens claim accrues, but the law of the forum 17 state determines the statute of limitations for such a claim. See Pesnell v. Arsenault, 543 18 F.3d 1038, 1043 (9th Cir. 2008) (quoting Papa v. United States, 281 F.3d 1004, 1009 (9th 19 Cir. 2002)). A Bivens claim accrues “when the plaintiff knows or has reason to know of 20 the injury.” Safouane v. Hassett, 514 Fed.App’x 691, 692 (9th Cir. 2013) (quoting W. 21 Ctr. For Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000)). The forum 22 state’s personal injury statute of limitations applies to Bivens claims. See Van Strum v. 23 Lawn, 940 F.2d 406, 410 (9th Cir. 1991). Tolling provisions for Bivens claims are also 24 borrowed from the forum state. See Pesnell, 542 F.3d at 1043 (quoting Papa. 281 F.3d at 25 1009). 26 In Arizona, the statute of limitations for personal injury claims is two years. 27 A.R.S. § 12-542. Defendants argue that the limitations period expired before Plaintiff 28 filed his complaint because “[a]ll actions of the individual defendants alleged in the -2- 1 [c]omplaint occurred on or before November 24, 2009.” Doc. 19 at 3. Because Plaintiff 2 knew of his injuries in November 2009, the government argues, the limitations period for 3 the Bivens action expired in November 2011. 4 The government is correct. Although Arizona has a tolling statute which suspends 5 the running of the statute of limitations in favor of persons with certain disabilities, 6 imprisonment is not listed as a qualifying disability. A.R.S. § 12-502. Indeed, “[t]he 7 current version of [A.R.S. § 12-502] omits reference to imprisonment altogether and no 8 longer recognizes imprisonment as a legal disability. Plaintiff has cited no authority, and 9 the court is unaware of any, construing the current version of § 12-502 to toll claims 10 based on a plaintiff’s imprisonment.” West v. City of Mesa, 2012 WL 2977309, *3 (D. 11 Ariz. July 20, 2012). Because Plaintiff filed his complaint on September 17, 2012, more 12 than two years after he became aware of his injuries, the complaint is time-barred. 13 Plaintiff asserts that his Bivens action did not accrue until June 25, 2012, when the 14 Supreme Court denied certiorari on his petition for a writ habeas corpus. Doc. 28 at 2. 15 Plaintiff argues that “[n]o Bivens lawsuit could have been filed earlier during the period 16 that the habeas petition was being litigated because . . . a Bivens action cannot be filed to 17 challenge the correctness or duration of a prison sentence by a prisoner.” Id. Plaintiff’s 18 argument appears to arise from a misreading of Heck v. Humphrey, 512 U.S. 477 (1994). 19 Heck holds that “in order to recover damages for allegedly unconstitutional conviction or 20 imprisonment, or for other harm caused by actions whose unlawfulness would render a 21 conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or 22 sentence has been reversed on direct appeal, expunged by executive order, declared 23 invalid by a state tribunal authorized to make such determination, or called into question 24 by a federal court’s issuance of a writ of habeas corpus[.]” Id. at 486-87. “Heck’s 25 requirements apply equally to suits brought under Bivens.” 26 Fed.App’x 725, 726 (9th Cir. 2004). Jones v. Shields, 107 27 Plaintiff’s reliance on Heck is misplaced. Plaintiff’s claim does not challenge the 28 validity of his convictions for the drug charge or the early release violation, nor does it -3- 1 challenge the 20-year sentence imposed in the drug case or the 1,681 days he received for 2 the early release violation. Plaintiff instead claims that an error occurred when the credit 3 for time served given as part of the 20-year sentence was mistakenly dropped in a 4 subsequent administrative calculation. Because success on this charge would not “imply 5 the invalidity of his conviction or sentence,” it is not barred by Heck. 512 U.S. at 486. 6 As a result, Heck did not prevent Plaintiff from bringing this Bivens claim during the 7 pendency of his habeas corpus petition. His claim therefore accrued in November of 8 2009 and is barred by the applicable two-year statute of limitations. 9 IT IS ORDERED: 10 1. The motion to dismiss (Doc. 19) is granted. 11 2. Defendants’ motion for summary judgment (Doc. 35) is found to be moot. 12 3. The Clerk shall terminate this action. 13 Dated this 25th day of October, 2013. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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