Bussiere v. Cano et al

Filing 77

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS and ORDER GRANTING Defendant's Motion to Dismiss 28 & 46 , signed by Chief Judge Anthony W. Ishii on 2/10/12: Defendant Cano is DISMISSED from this action. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTHUR T. BUSSIERE,
Plaintiff,

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CASE NO. 1:10-cv-00945-AWI-GBC (PC)
ORDER ADOPTING FINDINGS AND ORDER
GRANTING DEFENDANT’S MOTION TO
DISMISS

v.
CANO, et al.,

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(ECF No. 28 & 46)
Defendant.
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ORDER

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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. The matter was

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referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and

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Local Rule 302.

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On September 1, 2011, the Magistrate Judge filed a Findings and Recommendation
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recommending that Defendant Cano’s Motion to Dismiss for failure file suit within the

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applicable statute of limitations be granted and Defendant Cano be dismissed from this

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action. (ECF No. 46.) On October 4, 2011, Plaintiff filed his Objections to the Findings and

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Recommendation. (ECF No. 55.)

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In his Objections, Plaintiff reiterates the arguments made in his opposition, most of

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which do not apply to the statute of limitations claim. Plaintiff again claims that he had to

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be injured before he could file suit. Plaintiff is incorrect. In order to establish an Eighth

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Amendment violation, a plaintiff must objectively show that he was deprived of something

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sufficiently serious and then subjectively show that the deprivation occurred with deliberate

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indifference to the inmate's safety. Farmer v. Brennan, 511 U.S. 825, 834-87 (1994);

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Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009). An Eighth Amendment deliberate

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indifference claim can be based on the threat of future harm. Helling v. McKinney, 509

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U.S. 25, 32–35 (1993); Baptiste v. Dunn, 2011 WL 3647909, at *1 (9th Cir. 2011). The

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United States Supreme Court has "recognized that a remedy for unsafe conditions need

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not await a tragic event." Helling, 509 U.S. at 33.

Where an actual injury has yet to

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occur, the plaintiff's burden is to show that his future safety is unreasonably endangered,

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“that it is contrary to current standards of decency for anyone to be so exposed against his

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will, and that prison officials are deliberately indifferent to his plight.” Helling, 509 U.S. at

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33–35; Rodriguez v. Isaac, 2011 WL 4971865, at *6 (E.D.Cal. Oct. 19, 2011).

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Thus,

Plaintiff’s statute of limitations began to run when he was placed in risk of injury and

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Defendants were deliberately indifferent to Plaintiff’s risk of injury. The court agrees with
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the Magistrate Judge that this occurred when Plaintiff was given the “R” designation.

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As the Magistrate Judge explained in the Findings and Recommendation, this

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Section 1983 action is governed by California’s two-year state statutes of limitations for

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personal injury actions plus an additional two years for tolling.1 This means that Plaintiff

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“Actions brought pursuant to 42 U.S.C. § 1983 are governed by the state statutes of lim itations
for personal injury actions.” Morales v. City of Los Angeles, 214 F.3d 1151, 1154 (9th Cir. 2000) (citing
W ilson v. Garcia, 471 U.S. 261, 275 (1985)); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999), cert.
denied, 529 U.S. 1117 (2000). In California, there is a two-year statute of lim itations in Section 1983
cases. See Cal.Civ.Proc.Code § 335.1; Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Jones v.

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was entitled to four years from the date Defendant Cano placed the “R” designation on

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Plaintiff, July 23, 2003—Plaintiff’s injury. Plaintiff did not bring this action until May 2010.

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(ECF No. 1.) Therefore, the Court finds that Plaintiff failed to bring suit against Defendant

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Cano within the applicable statute of limitations time period.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 305,

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this Court has conducted a de novo review of this case. Having carefully reviewed the

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entire file, the Court finds the Findings and Recommendation to be supported by the record

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and by proper analysis. Thus, the Motion to Dismiss is granted and Plaintiff’s Complaint

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is dismissed without prejudice.

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Accordingly, IT IS HEREBY ORDERED that:
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The Findings and Recommendation, filed September 1, 2011, is adopted in
full;

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All claims against Defendant Cano are DISMISSED WITH PREJUDICE; and

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3.

Defendant Cano is DISMISSED from this action.

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IT IS SO ORDERED.

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Dated:
0m8i78

February 10, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (“[f]or actions under 42 U.S.C. § 1983, courts apply the forum
state’s statute of lim itations for personal injury actions.”). “Federal courts also apply a forum state’s law
regarding tolling, including equitable tolling when not inconsistent with federal law.” See Hardin v. Straub,
490 U.S. 536, 537–39 (1989). Pursuant to California Civil Procedure Code § 352.1(a), a prisoner serving
a term of less than life is entitled to the two-year tolling provision before the com m encem ent of the statute
of lim itations for bringing a civil rights action.

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