Lance Williams v. Kerkfoot et al

Filing 9

ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED AS UNTIMELY by Magistrate Judge Kenly Kiya Kato. Response to Order to Show Cause due by 12/11/2014. (Attachments: # 1 NOTICE OF DISMISSAL) (dts)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-7583-GW (KK)

Title

Lance Williams v. Deputy Kerkfoot, et al.

Present: The
Honorable

Date

November 20, 2014

Kenly Kiya Kato, United States Magistrate Judge

Deb Taylor

None

None

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiff:

Attorneys Present for Defendant:

None Present

None Present

Proceedings:

(In Chambers) Order To Show Cause Why This Action Should Not Be
Dismissed as Untimely

On September 23, 2014, Plaintiff Lance Williams, proceeding pro se and in forma
pauperis, constructively filed a civil rights complaint pursuant to 42 U.S.C. § 1983
(“Complaint”).1 The Complaint was received by the Court on September 29, 2014;
lodged on September 30, 2014; and filed on November 12, 2014. The Complaint appears
to be untimely on its face. Thus, Plaintiff is ordered to show cause why the Complaint
should not be dismissed as time-barred.

I. BACKGROUND
The Complaint is one of four civil rights complaints Plaintiff has filed since
September 23, 2014. See Case Nos. 2:14-cv-8037-PA-KK; 2:14-cv-8039-PA-KK; 2:148640-PA-KK. Plaintiff sues various defendants for an assault that allegedly occurred on
July 28, 2010. See ECF No. 1-1 at 3.

1

Under the “mailbox rule,” a pleading filed by a pro se prisoner is deemed to be filed as of the
date the prisoner delivered the pleading to prison authorities for mailing, not the date on which the
pleading may have been received by the court. See Anthony v. Cambra, 236 F.3d 568, 574-75 (9th Cir.
2000). Here, Plaintiff states he mailed the Complaint on September 23, 2014. ECF No. 1-1 at 9. Thus,
the Court considers that date to be the date of filing.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-7583-GW (KK)

Date

Title

November 20, 2014

Lance Williams v. Deputy Kerkfoot, et al.

II. LEGAL STANDARD
A court may dismiss a complaint sua sponte “on the ground that it is barred by the
applicable statute of limitations” if “the running of the statute is apparent on the face of
the complaint.” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954,
969 (9th Cir. 2010) (citation and internal quotation marks omitted); see also Levald, Inc.
v. City of Palm Desert, 998 F.2d 680, 687 (9th Cir. 1993).
“For actions under 42 U.S.C. § 1983, courts apply the forum state’s statute of
limitations for personal injury actions, along with the forum state’s law regarding tolling,
including equitable tolling, except to the extent any of these laws is inconsistent with
federal law.” Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (citation omitted).
California’s statute of limitations for personal injury claims is two years. Id. (citing Cal.
Civ. Proc. Code § 335.1). California law “provides for the tolling of a statute of
limitations for a period of two years based on the disability of imprisonment,” if the
plaintiff is “‘imprisoned on a criminal charge . . . for a term less than for life.’” Id.
(quoting Cal. Civ. Proc. Code § 352.1) (footnote omitted).
In addition, “California courts apply equitable tolling to prevent the unjust
technical forfeiture of causes of action, where the defendant would suffer no prejudice.”
Id. at 928 (citation and internal quotation marks omitted). “Application of California’s
equitable tolling doctrine requires a balancing of the injustice to the plaintiff occasioned
by the bar of his claim against the effect upon the important public interest or policy
expressed by the limitations statute.” Id. (citations, internal quotation marks, and
alterations omitted). “Under California law, a plaintiff must meet three conditions to
equitably toll a statute of limitations: (1) defendant must have had timely notice of the
claim; (2) defendant must not be prejudiced by being required to defend the otherwise
barred claim; and (3) plaintiff’s conduct must have been reasonable and in good faith.”
Fink v. Shelder, 192 F.3d 911, 916 (9th Cir. 1999) (citation and internal quotation marks
omitted). “[T]he effect of equitable tolling is that the limitations period stops running
during the tolling event, and begins to run again only when the tolling event has
concluded.” Lantzy v. Centex Homes, 31 Cal. 4th 363, 370 (2003).
While “state law determines the length of the limitations period, federal law
determines when a civil rights claim accrues.” Morales v. City of Los Angeles, 214 F.3d
1151, 1153-54 (9th Cir. 2000). Under federal law, “a claim accrues when the plaintiff
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-7583-GW (KK)

Date

Title

November 20, 2014

Lance Williams v. Deputy Kerkfoot, et al.

knows or has reason to know of the injury which is the basis of the action.” TwoRivers
v. Lewis, 174 F.3d 987, 992 (9th Cir. 1999) (citation omitted).

III. APPLICATION
Plaintiff’s claims accrued on July 28, 2010. Starting from that date, Plaintiff had
four years to file his claims: two years under section 1983’s statute of limitations, and
two years of tolling for the “disability of imprisonment.” Jones, 393 F.3d at 927.
Plaintiff was, therefore, required to file his claims by July 28, 2014. Plaintiff did not file
the Complaint until September 23, 2014. Thus, absent equitable tolling, Plaintiff’s
Complaint is untimely. Plaintiff has not asked for equitable tolling, much less
demonstrated he is eligible for it. Therefore, the Complaint appears to be time-barred.

IV. CONCLUSION
Plaintiff is therefore ORDERED TO SHOW CAUSE within fourteen (14) days of
the date of this Order why the Court should not dismiss his Complaint as untimely.
As an alternative, Plaintiff may, within fourteen (14) days of the date of this
Order, request a voluntary dismissal of this action without prejudice, pursuant to Federal
Rule of Civil Procedure 41(a). A Notice of Dismissal Form is attached for Plaintiff’s
convenience.
The Court warns Plaintiff that failure to file a timely response to this Order will
result in a recommendation that this action be dismissed.

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