Bussiere v. Cano et al

Filing 46

FINDINGS and RECOMMENDATIONS recommending Granting Defendant Cano's 28 Motion to Dismiss signed by Magistrate Judge Gerald B. Cohn on 09/01/2011. Referred to Judge Ishii; Objections to F&R due by 10/4/2011. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTHUR T. BUSSIERE,

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Plaintiff,
v.

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CASE NO.

1:10-cv-00945-AWI-GBC (PC)

FINDINGS AND RECOMMENDATION
RECOMMENDING GRANTING DEFENDANT
CANO’S MOTION TO DISMISS

CANO, et al.,
(ECF No. 28)

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Defendants.
/ OBJECTIONS DUE WITHIN THIRTY DAYS

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FINDINGS AND RECOMMENDATION

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I.

PROCEDURAL HISTORY

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Plaintiff Arthur T. Bussiere (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this

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action on May 26, 2010. (ECF No. 1.)

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This action proceeds on Plaintiff’s Complaint against Defendants Cano and Lopez
for deliberate indifference in violation of the Eighth Amendment. (ECF Nos. 13 & 16.)

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Pending before the Court is Defendant Cano’s Motion to Dismiss for failure to file suit

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within the applicable statute of limitations. (ECF No. 28.) Plaintiff filed his response on

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June 30, 2011. (ECF No. 33.) No reply was filed.

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II.

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PLAINTIFF’S COMPLAINT SUMMARY
Plaintiff states that he was arrested for a sexual assault in a different state, but that

he was not prosecuted. In California, Plaintiff was sentenced to sixteen years to life for

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second degree murder.

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On August 10, 2001, Plaintiff arrived at Pleasant Valley State Prison. Plaintiff states

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that Defendant Cano erroneously placed an “R” designation on his custody status. The

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“R” designation is used to identify inmates who have a history of sex offenses. This

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change in his status endangered his safety because inmates identified as sex offenders

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are likely to be assaulted. Plaintiff states that Cano was aware of this danger. Plaintiff was

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then released to the general population. Plaintiff was assaulted on November 21, 2009

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and twice on January 10, 2010 because of the “R” designation.

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III.

ARGUMENTS

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Defendant Cano argues that the action should be dismissed because Plaintiff did

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not file suit within the applicable statute of limitations. Defendant states that, pursuant to

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Section 335.1 of the California Code of Civil Procedure, Plaintiff’s claims are subject a two

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year time limitation. Defendant further states that Plaintiff is also entitled to an additional

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two years of statutory tolling, Cal.Civ.Proc.Code § 352.1(a), for a total of four years within

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which Plaintiff had to file suit.

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Defendant Cano states that Plaintiff appeared before him for a classification hearing

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on July 23, 2003. Defendant states that this hearing in 2003 was the first time Plaintiff was

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before him. Taking Plaintiff’s claim that Defendant Cano changed Plaintiff’s status as true,

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the July 23, 2003 hearing would have been when the change occurred. The change in
designation would begin the statute of limitations clock ticking for an action against

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Defendant Cano. Defendant Cano states that to file within the time period, Plaintiff would

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have had to file this action by 2007. However, Plaintiff filed this action May 26, 2010, which

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is well beyond the expiration of the statute of limitations.

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The majority of Plaintiff’s arguments do not address the statute of limitations

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argument. However, Plaintiff does state that he had to suffer physical harm before he

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could file a civil action.

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IV.

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LEGAL STANDARDS AND ANALYSIS
A.

Motion to Dismiss Standard

In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a

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complaint must contain more than a “formulaic recitation of the elements of a cause of

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action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The

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pleading must contain something more . . . than . . . a statement of facts that merely

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creates a suspicion [of] a legally cognizable right of action.” Id. (quoting 5 C. Wright & A.

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Miller, Federal Practice and Procedure § 1216, pp. 235–236 (3d ed. 2004)). “[A] complaint

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must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

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plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly,

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550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id.

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In considering a motion to dismiss, the court must accept as true the allegations of

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the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740
(1976), construe the pleading in the light most favorable to the party opposing the motion

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and resolve all doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421,

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rehearing denied, 396 U.S. 869 (1969). The Court will “‘presume that general allegations

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embrace those specific facts that are necessary to support the claim.’”

National

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Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v.

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Defenders of Wildlife, 504 U.S. 555, 561 (1992). Moreover, pro se pleadings are held to

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a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519,

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520 (1972).

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The court may consider facts established by exhibits attached to the complaint.
Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also

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consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828

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F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders,

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and other papers filed with the Court, Mack v. South Bay Beer Distributors, 798 F.2d 1279,

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1282 (9th Cir. 1986). The Court need not accept legal conclusions “cast in the form of

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factual allegations.” Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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B.

Statute of Limitations Standard

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“Actions brought pursuant to 42 U.S.C. § 1983 are governed by the state statutes

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of limitations for personal injury actions.” Morales v. City of Los Angeles, 214 F.3d 1151,

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1154 (9th Cir. 2000) (citing Wilson v. Garcia, 471 U.S. 261, 275 (1985)); Fink v. Shedler,

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192 F.3d 911, 914 (9th Cir. 1999), cert. denied, 529 U.S. 1117 (2000). In California, there

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is a two-year statute of limitations in Section 1983 cases. See Cal.Civ.Proc.Code § 335.1;

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Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Jones v. Blanas, 393 F.3d 918,

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927 (9th Cir. 2004) (“[f]or actions under 42 U.S.C. § 1983, courts apply the forum state’s
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statute of limitations for personal injury actions.”).

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“Federal courts also apply a forum state’s law regarding tolling, including equitable

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tolling when not inconsistent with federal law.” See Hardin v. Straub, 490 U.S. 536,

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537–39 (1989). Pursuant to California Civil Procedure Code § 352.1(a), a prisoner serving

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a term of less than life is entitled to the two-year tolling provision before the
commencement of the statute of limitations for bringing a civil rights action.

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C.

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Being that Plaintiff states that he was sentenced to sixteen years to life, the Court

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finds that he is entitled to the two-year statutory tolling. Beard v. Lucio, 2009 WL 393016,

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Analysis

*2 (C.D.Cal. 2009) (inmate sentenced to life term with possibility of parole entitled to

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statutory tolling) (citing Martinez v. Gomez, 137 F.3d 1124, 1126 (9th Cir. 1998)).

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The Court takes as true Plaintiff’s allegation that the “R” designation was added to

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Plaintiff’s status by Defendant Cano. Defendant Cano’s first encounter with Plaintiff was

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on July 23, 2003. Afterwards, Plaintiff alleges, Defendant Cano was deliberately indifferent

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to Plaintiff’s safety by placing him back in the general population with the “R” designation.

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The Court finds that Plaintiff’s cause of action as to Defendant Cano accrued during

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that July 23, 2003 classification committee hearing. On the date of the hearing, Plaintiff
was “injured” or at least became aware of his “injury.”

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Plaintiff’s argument that he had to suffer a physical injury is incorrect. He cites no

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authority and the Court is aware of none that supports that theory. Plaintiff’s initial “injury”

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was the “R” designation and then release back to the general population.

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Plaintiff’s statute of limitations’ clock as to a claim against Defendant Cano began

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ticking on July 23, 2003. As noted above, Plaintiff had four years from that date to
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commence this action. Plaintiff failed to bring suit within the proper time period. Thus, the

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Court finds that Plaintiff failed to bring this action against Defendant Cano within the

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applicable statute of limitations’ time period.

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V.

CONCLUSION AND ORDER

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Accordingly, the Court HEREBY RECOMMENDS that Defendant Cano’s Motion to

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Dismiss be GRANTED and that Plaintiff’s claim against Defendant Cano be DISMISSED

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WITH PREJUDICE for failure to abide by applicable time limitations.

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These Findings and Recommendation will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within

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thirty (30) days after being served with these Findings and Recommendation, the parties

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may file written objections with the Court. The document should be captioned “Objections

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to Magistrate Judge’s Findings and Recommendation.” The parties are advised that failure

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to file objections within the specified time may waive the right to appeal the District Court’s

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order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
1j0bbc

September 1, 2011
UNITED STATES MAGISTRATE JUDGE