Federico Rosas v. T. Streeter ID No 5733 et al

Filing 8

MINUTE ORDER IN CHAMBERS by Magistrate Judge Sheri Pym:, by Magistrate Judge Sheri Pym, Order to Show Cause Why Complaint Should Not Be Dismissed as Time-Barred. Within 30 days of the date of this Order, that is, by November 19,2014, plaintiff is ORDERED TO SHOW CAUSE, in writing (SEE ORDER FOR DETAILS). (kca)

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

SA CV 14-1061-BRO (SP)

Title

FEDERICO ROSAS v. T. STREETER, et al.

Present: The Honorable

Date

October 20, 2014

Sheri Pym, United States Magistrate Judge

Kimberly Carter

None Appearing

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiff(s):

Attorneys Present for Defendant(s):

None Appearing

None Appearing

Proceedings:

(In Chambers) Order to Show Cause Why Complaint Should Not Be
Dismissed as Time-Barred

On July 10, 2014, plaintiff Federico Rosas initiated this action by lodging a civil
rights complaint under 42 U.S.C. § 1983, which complaint was subsequently filed on
July 25, 2014. Plaintiff alleges that sheriff’s deputies violated his civil rights while he
was incarcerated at the Orange County Central Men’s Jail in 2005, 2006, 2007, and
2008. He alleges that two of the defendants assaulted him in March 2005, and that one
of these defendants continued to threaten and harass him in 2006 and 2007. He also
alleges that on March 24, 2008, two other defendants assaulted him, and continued to
threaten him in the days that followed. The last date plaintiff alleges that any of the
conduct at issue occurred was in March 2008.
Section 1983 does not specify a statute of limitations. Accordingly, federal courts
borrow state statutes of limitations for personal injury actions in § 1983 suits. See
Wallace v. Kato, 549 U.S. 384, 387, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007);
Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008)
(borrowing California's statute of limitations for personal injury actions in § 1983 suits).
In California, the applicable statute of limitations is two years for personal injury claims
that accrued on or after January 1, 2003. See Cal. Civ. Proc. Code § 335.1; Maldonado
v. Harris, 370 F.3d 945, 954-955 (9th Cir. 2004). “Although 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 knows or has reason to know of
the injury which is the basis of the action.’” Knox v. Davis, 260 F.3d 1009, 1013 (9th
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SA CV 14-1061-BRO (SP)

Title

Date

October 20, 2014

FEDERICO ROSAS v. T. STREETER, et al.

Cir. 2001) (citation omitted).
Here, according to the allegations in the complaint, the last date on which any of
plaintiff's claims could have accrued was in March 2008. Plaintiff alleges that, after the
March 24, 2008 assault, defendant Cass continued to harass him in “the days that
followed.” Complaint at 5. Plaintiff alleges that he then appeared in court in his
criminal case “with fresh signs of being assaulted,” and his public defender raised the
issue with the court. Id. at 6. Plaintiff was thereafter given medical attention, an
investigator began documenting what happened and photographed plaintiff’s injuries,
and plaintiff was transferred to a different jail facility. Id. It therefore appears all of
plaintiff's claims accrued no later than March 2008, more than six years before he
initiated this action on July 10, 2014.
Since plaintiff was in custody during the period his claims accrued, he is entitled
to some tolling of the statute of limitations. It appears from the Complaint that plaintiff
has been continuously in custody since his last claim accrued, and as such, he is entitled
to two years of tolling. See Cal. Code Civ. Proc. § 352.1(a) (tolling statute of limitations
for up to two years during period of imprisonment). Thus, the statute of limitations
would not have begun to run until March 2010.
It does not appear that plaintiff is entitled to any additional statutory tolling.
According to the Complaint, plaintiff had criminal charges pending against him in March
2008. Government Code § 945.3 provides for tolling while criminal charges are
pending. But this applies only where the criminal charges are related to the civil claim to
be tolled. See Cal. Gov’t Code § 945.3 (tolling statute of limitations during period
criminal charges are pending, provided that the civil claim to be filed against a peace
officer or his employing agency is based on conduct of the officer relating to the pending
criminal charges against the plaintiff). That does not appear to be the case here, as
plaintiff alleges the pending charge against him was for possession of a jail weapon. See
Complaint at 6. Moreover, even if the criminal charge were related, plaintiff alleges that
after the March 2008 incident, his pending criminal charge was dropped without notice,
and he was transferred to another jail facility, and then to state prison. Id. Thus, it
appears plaintiff no longer had any criminal charge pending against him after 2008. As
such, any tolling to which plaintiff might arguably be entitled under Government Code
§ 945.3 would have ended in 2008, long before his tolling period under Code of Civil
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SA CV 14-1061-BRO (SP)

Title

Date

October 20, 2014

FEDERICO ROSAS v. T. STREETER, et al.

Procedure § 352.1(a) ended in March 2010.
In short, it appears the two-year statute of limitations to bring a the instant civil
rights claims began running in March 2010 and expired in March 2012. Consequently, it
appears that the Complaint – filed more than two years later – is time-barred and must be
dismissed with prejudice on that basis. But the court will not decide this matter without
giving plaintiff an opportunity to respond.
Accordingly, within 30 days of the date of this Order, that is, by November 19,
2014, plaintiff is ORDERED TO SHOW CAUSE, in writing, why this action should
not be dismissed as time-barred. Plaintiff is cautioned that his failure to timely file a
response to this Order to Show Cause will be deemed by the court as consent to the
dismissal of this action with prejudice. In the event plaintiff wishes to voluntarily
dismiss this action, plaintiff may complete and return the enclosed Notice of Dismissal
form by November 19, 2014.

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