Foster v. Vasquez et al
Filing
45
ORDER Denying 37 Motion, signed by Chief Judge Ralph R. Beistline on 9/8/14. (Verduzco, M)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MICHAEL FOSTER,
Case No. 1:10-cv-01830-RRB
Plaintiff,
ORDER DENYING
MOTION AT DOCKET 37
vs.
CAPTAIN F. VASQUEZ; et al.,
Defendants.
I.
PENDING MOTION
At Docket 37 Plaintiff Michael Foster moved for leave to file an Amended
Complaint. Foster has also lodged his proposed First Amended Complaint.1 Defendants
filed a statement of non-opposition.2 Because Foster had not attached a copy of his
proposed Amended Complaint, the Court denied without prejudice Foster’s initial motion
to file an amended complain and specifically provided the following guidance:
1.
2.
1
Defendants may be sued solely in their personal capacities, not their
official capacities;
The Amended Complaint is subject to terms of the Court’s Screening
Order; and
Docket 38.
2
Docket 41. Although filing a non-opposition, Defendants requested that the Court
screen the proposed amended complaint under 28 U.S.C. § 1915(e)(2).
ORDER DENYING MOTION AT DOCKET 37
Foster v. Vasquez, 1:10-cv-01830-RRB - 1
3.
II.
In his motion, Foster must affirmatively address why this action, as
against Warden Allison, is not barred by the applicable statute of
limitations.3
SCREENING STANDARD
This Court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental entity.4 This Court
must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that
“seeks monetary relief against a defendant who is immune from such relief.”5
In determining whether a complaint states a claim, the Court looks to the pleading
standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.”6 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”7 Failure to state a claim under § 1915A incorporates the familiar standard
applied in Federal Rule of Civil Procedure 12(b)(6), including the rule that complaints filed
by pro se prisoners are to be liberally construed, affording the prisoner the benefit of any
3
Docket 36 (footnotes omitted).
4
28 U.S.C. § 1915A(a).
5
28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c); see Lopez v. Smith, 203 F.3d
1122, 1126 & n.7 (9th Cir. 2000) (en banc).
6
Fed. R. Civ. P. 8(a)(2).
7
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 554, 555 (2007)).
ORDER DENYING MOTION AT DOCKET 37
Foster v. Vasquez, 1:10-cv-01830-RRB - 2
doubt, and dismissal should be granted only where it appears beyond doubt that the
plaintiff can plead no facts in support of his claim that would entitle him or her to relief.8
III.
DISCUSSION
In his proposed Amended Complaint Foster adds as a defendant Warden Kathleen
Allison. As against Warden Allison, Foster alleges that: (1) on July 20, 2009, she “authored
a program status report that erroneously lockedown [sic] the blacks;”9 and (2) based upon
information provided by Defendants Vasquez and Goss, she “continue[d] the black inmates
on suspended outdoor exercise program (modified program).”10
On July 28, 2014, Foster filed his initial motion requesting leave to amend his
complaint. For the purpose of screening this Court assumes that the limitations period
stopped on that date. “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.”11 California law provides a two-year statute of limitations for personal injury
claims, which may be tolled for an additional two years for prisoners.12
In his motion Foster contends that the limitation period starts either the last day of
the lockdown, November 9, 2009, or when his CDCR 602 was denied, June 28, 2010. The
8
Wilhelm v. Rotham, 680 F.3d 1113, 1121 (9th Cir. 2012).
9
Proposed Amended Complaint, Docket 38, p. 4, ¶ 12,
10
Proposed Amended Complaint, Docket 38, p. 4, ¶ 13,
11
Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004).
12
See Cal. Civ. Proc. Code §§ 335.1, 352.1(a).
ORDER DENYING MOTION AT DOCKET 37
Foster v. Vasquez, 1:10-cv-01830-RRB - 3
Court disagrees. “Under federal law, a claim accrues when plaintiff knows or should know
of the injury that is the basis of the cause of action.”13 In this case, the limitations period
began to run at the time the lockdown was initiated. From the complaint it appears that this
may have been some date prior to, but certainly not after, July 20, 2009, more than five (5)
years prior to the date of Foster’s motion. Thus, unless otherwise tolled, the limitations
period expired at the latest July 20, 2013.
Foster contends that the period of limitations was equitably tolled during three
periods. First, that as a result of an attack on his person on March 3, 2013, he was
hospitalized and unable to file his amended complaint. Second, on some unspecified date
in July 2013 he was transferred to High Desert State Prison (“HDSP”) and was without his
legal files for a period of a month. Then, in January 2014, Foster was transferred to
Corcoran State Prison (“CSP”) and was without his legal files for a period of five (5)
months.
Assuming without deciding that the limitations period stopped running on March 3,
2013, Foster had 139 days within which to file his amended complaint adding a new party.
Assuming also that he was incapacitated from March 3 through July 31, 2013, unless
otherwise tolled, his time began running again when he was transferred to HDSP on
July 31, 2013. However, because he was without his legal files for a month, his time did
13
Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009); see also Wallace v. Kato,
549 U.S. 384, 391, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007) (“The cause of action
accrues even though the full extent of the injury is not then known or predictable.” (citation
and internal quotation marks omitted)).
ORDER DENYING MOTION AT DOCKET 37
Foster v. Vasquez, 1:10-cv-01830-RRB - 4
not start running again until September 1, 2013. The time then ran from that date until his
transfer to CSP, on or about January 1, 2014, a period of 122 days, leaving Foster 17 days
within which to file his amended complaint. Foster was again without his legal files for a
period of five (5) months. Thus, excluding those five (5) months, the time began running
again on June 1, 2014 and expired 17 days later, June 18, 2014. Foster filed his motion
to amend his complaint on July 20, 2014, 32 days late.
This Court also notes that it is more likely than not that Warden Allison is entitled
to at least qualified immunity. Qualified immunity is analyzed using the two-step inquiry set
forth in Saucier.14 The first step of the Saucier analysis requires the court to decide whether
the refusal to provide Lopez with the proper fitting shoes violated his constitutional rights.15
If so, “the next, sequential step is to ask whether the right was clearly established.” Id. For
a right to be clearly established, its contours “‘must be sufficiently clear that a reasonable
official would understand that what he is doing violates the right.’”16 The protection afforded
by qualified immunity “safeguards ‘all but the plainly incompetent or those who knowingly
violate the law.’”17
In applying the second prong of the Saucier test to lockdowns, the Ninth Circuit has
held:
14
Saucier v. Katz, 533 U.S. 194 (2001).
15
Id. at 201.
16
Id. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1997)).
17
Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 977
(9th Cir. 1998); (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
ORDER DENYING MOTION AT DOCKET 37
Foster v. Vasquez, 1:10-cv-01830-RRB - 5
We conclude pursuant to what is now known as prong 2 of the
Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed.2d 272 (2001)
test, see Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 821, 172
L. Ed.2d 565 (2009), that it was not clearly established in 2002—nor is it
established yet—precisely how, according to the Constitution, or when a
prison facility housing problem inmates must return to normal operations,
including outside exercise, during and after a state of emergency called in
response to a major riot . . . .18
Foster has not pleaded any facts that would indicate a subjective intent to inflict
harm, or that the lockdown was in excess of that required to restore and maintain order,
was unrelated to responsibilities of prison authorities responsibility for maintaining security
and safety, or was kept in effect for longer than necessary.19 In short, even if this Court did
not agree with the necessity for the lockdown, that is not the test. This Court must give
prison officials reasonable leeway in determining the extent to which an emergency exists
and the need for restricting or suspending prisoners’ activities.20 Nothing in the proposed
Amended Complaint, or the record before this Court, plausibly supports a jury finding in
favor of Foster on the issue.
IV.
CONCLUSION AND ORDER
Giving Foster the benefit of every doubt and construing the time frames involved in
a manner most advantageous to Foster, it is clear that his motion to amend his complaint
is untimely. Furthermore, as noted, it is more likely than not that the Warden is entitled to
18
Noble v. Adams, 646 F.3d 1138, 1142–43 (9th Cir. 2011).
19
See id. at 1147–48.
20
Id. at 1147 (citing Hayward v. Procunier, 629 F.2d 559 (9th Cir. 1980) and
Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1237)).
ORDER DENYING MOTION AT DOCKET 37
Foster v. Vasquez, 1:10-cv-01830-RRB - 6
qualified immunity. Thus, permitting amendment would most likely be futile and do nothing
more than lead to further delay in bringing the matter to a conclusion. Accordingly, the
Motion Requesting Leave to Amend Complaint at Docket 37 is DENIED.
IT IS SO ORDERED this 8th day of September, 2014.
/s/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
ORDER DENYING MOTION AT DOCKET 37
Foster v. Vasquez, 1:10-cv-01830-RRB - 7
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