Hamilton v. Hart et al

Filing 13

ORDER to SHOW CAUSE signed by Magistrate Judge Gary S. Austin on 5/10/2012. Show Cause Response due by 6/12/2012. (Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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DENNIS HAMILTON,
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Plaintiff,
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v.
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JOHN HART, et al.,
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Defendants.
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____________________________________)

1:10-cv-00272 GSA PC
ORDER TO SHOW CAUSE WHY
THIS ACTION SHOULD NOT BE
DISMISSED AS TIME BARRED
RESPONSE DUE IN THIRTY DAYS

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Plaintiff is a state prisoner proceeding pro se in this civil rights action. Plaintiff has
consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).

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This action proceeds on the original complaint filed on February 18, 2010. Plaintiff, an

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inmate in the custody of the California Department of Corrections at CSP Corcoran, brings this

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action pursuant to 42 U.S.C. § 1983 against correctional officials at Kern Valley State Prison.

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The event that gives rise to this lawsuit occurred while Plaintiff was housed at Kern Valley.

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Plaintiff names as defendants the following individuals: Correctional Officer (C/O) John

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Hart; C/O C. Prouty; C/O R. Phillips; C/O J. Ronquillo; C/O D. Castro; C/O Llamas; C/O Scott;

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C/O Durden; C/O Perez; C/O Gonzalez; C/O Massey; C/O Bogle; C/O Trupe; C/O Ocampo.

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Plaintiff claims that Defendants violated his right to be free from cruel and unusual punishment

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in violation of the Eight Amendment. Specifically, Plaintiff alleges that Defendants subjected

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him to excessive force, and failed to decontaminate Plaintiff after spraying him with pepper

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spray.
The event that gives rise to this lawsuit occurred on February 21, 2006. Plaintiff refused

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a cellmate, and in response, Defendants sprayed him with pepper spray. Plaintiff alleges that

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Defendants refused to decontaminate him and subjected him to further harm by kicking and

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stomping him.

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Federal law determines when a civil rights claim accrues. Elliott v. City of Union City,

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25 F.3d 800, 801-802 (9th Cir. 1994). Under federal law, a claim accrues when the plaintiff

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knows or has reason to know of the injury which is the basis of this action. Kimes v. Stone, 84

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F.3d 1121, 1128 (9th Cir. 1996). At the time Plaintiff’s claim accrued, the statute of limitations

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was one year. Cal. Civ. Proc. Code § 340(3); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir.

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2004)(Cal. Civ. Proc. § 335.1, extending the statute of limitations from one to two years, does

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not apply to claims that accrued prior to January 1, 2003).

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In actions where the federal court borrows the state statute of limitations, the court should

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also borrow all applicable provisions for tolling the limitations period in state law. Hardin v.

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Straub, 490 U.S. 536, 539 (1989). Pursuant to California Code of Civil Procedure section 352.1,

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a two-year limit on tolling is imposed on prisoners. Section 352.1 provides, in pertinent part, as

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follows:

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(a) If a person entitled to bring an action, mentioned in Chapter 3
(commending with Section 335), is, at the time the cause of action
accrued, imprisoned on a criminal charge, or in execution under the
sentence of a criminal court for a term less than for life, the time of
that disability is not a part of the time limited for the
commencement of the action, not to exceed two years.

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Plaintiff was incarcerated at the time he filed suit and is entitled to application of the two

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year tolling provision. Plaintiff therefore had one year, plus two years for tolling, for a total of

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three years from February 21, 2006, in which to file suit. This action was initiated by civil

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complaint filed on February 18, 2010, over one year after the limitation period expired.

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Although the statute of limitations is an affirmative defense that normally may not be

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raised by the Court sua sponte, it may be grounds for sua sponte dismissal of an in forma

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pauperis complaint where the defense is complete and obvious from the face of the pleadings or

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the court’s own records, Franklin v. Murphy, 745 F.2d 1221, 1228-1230 (9th Cir. 1984).See

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Levald, Inc. V. City of Palm Desert, 988 F.2d 680, 686-87 (9th Cir. 1993).

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the defense appears complete and obvious from the face of the complaint.

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That is the case here:

Accordingly, IT IS HEREBY ORDERED that Plaintiff shall show cause, within thirty

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days of the date of service of this order, why this action should not be dismissed as time barred.

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Plaintiff’s failure to respond to this order will result in dismissal of this action.

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IT IS SO ORDERED.

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Dated:
6i0kij

May 10, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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