Reed v. Hinshaw et al

Filing 38

FINDINGS and RECOMMENDATIONS Regarding Defendants' Motion to Dismiss 32 . signed by Magistrate Judge Stanley A. Boone on 2/20/15: Thirty Day Deadline for Objections. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CRAIG REED,

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Plaintiff,

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v.
SERGEANT HINSHAW, et al.,

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Defendants.

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Case No.: 1:11-cv-00340-AWI-SAB (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION TO
DISMISS
[ECF No. 32]

Plaintiff Craig Reed is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983.

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I.

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INTRODUCTION
This action is proceeding on Plaintiff’s second amended complaint, filed June 16, 2014, on his

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claim of retaliation in violation of the First Amendment against Defendants Hinshaw and Johnson.
On November 18, 2014, Defendants filed a motion to dismiss the second amended complaint

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as barred by the applicable statute of limitations. (ECF No. 32.) Plaintiff filed an opposition on

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January 16, 2015, and Defendants filed a reply on January 20, 2015. (ECF Nos. 35, 36.)

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II.

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DISCUSSION

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A.

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Plaintiff alleges that on May 18, 2005, Defendant Hinshaw issued a falsified rules violation

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report charging Plaintiff with filing a false report. Plaintiff contends Defendant Hinshaw issued the

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fraudulent rules violation report in retaliation, which did not advance a legitimate penological interest

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but was intended to chill him from filing grievances.

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Second Amended Complaint Allegations

Plaintiff further alleges that Defendant Johnson issued a rules violation report falsely claiming
that he masturbated in front of her and charged him with indecent exposure. Plaintiff alleges that
Johnson issued the report in retaliation.

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B.

Legal Standard for Motion to Dismiss

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A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim,

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and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts

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alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th

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Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, a court’s review is

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generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998

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(9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan

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Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006); Schneider v. California Dept. of Corr., 151 F.3d 1194,

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1197 n.1 (9th Cir. 1998).

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However, courts may properly consider matters subject to judicial notice and documents

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incorporated by reference in the pleading without converting the motion to dismiss to one for

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summary judgment. U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Under the doctrine of

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incorporation by reference, a court may consider a document provided by the defendant which was not

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attached to the pleading if the plaintiff refers to the document extensively or if it forms the basis of the

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plaintiff’s claim. Ritchie, 342 F.3d at 908; see also Daniels-Hall, 629 F.3d at 998.

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To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

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true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation
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Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court

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must accept the well-pleaded factual allegations as true and draw all reasonable inferences in favor of

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the non-moving party, Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Huynh, 465 F.3d at

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996-97; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit,

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prisoners proceeding pro se are still entitled to have their pleadings liberally construed and to have any

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doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v.

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Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011);

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Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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Further, “[a] claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the

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applicable statute of limitations only when ‘the running of the statute is apparent on the face of the

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complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir.

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2010) (quoting Huynh, 465 F.3d at 997). “‘A complaint cannot be dismissed unless it appears beyond

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doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.’”

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Von Saher, 592 F.3d at 969 (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir.

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1995)).

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C.

Applicable Statute of Limitations

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Federal law determines when a claim accrues, and “[u]nder federal law, a claim accrues when

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the plaintiff knows or should know of the injury that is the basis of the cause of action.” Douglas v.

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Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (citation omitted); Maldonado v. Harris, 370 F.3d 945,

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955 (9th Cir. 2004); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Because section 1983

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contains no specific statute of limitations, federal courts should apply the forum state’s statute of

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limitations for personal injury actions.

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Maldonado, 370 F.3d at 954; Fink, 192 F.3d at 914. California=s statute of limitations for personal

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injury actions was extended to two years effective January 1, 2003. Cal. Civ. Proc. Code ' 335.1;

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Jones, 393 F.3d at 927; Maldonado, 370 F.3d at 954-55.

Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004);

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

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borrow all applicable provisions for tolling the limitations period found in state law. Jones, 393 F.3d

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at 927. Under California law, prisoners who at the time the cause of action accrued were either
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imprisoned on a criminal charge or serving a sentence of less than life for a criminal conviction

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benefit from a two-year tolling provision for damages actions. Cal. Civ. Proc. Code ' 352.1.

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In addition, California=s equitable tolling doctrine “applies when an injured person has several

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legal remedies and, reasonably and in good faith, pursues one.” McDonald v. Antelope Valley

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Community College Dist., 45 Cal.4th 88, 100 (Cal. 2008) (citation and internal quotation marks

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omitted). The equitable tolling of statutes of limitations is a judicially created, nonstatutory doctrine

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designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the

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purpose of the statute of limitations - timely notice to the defendant of the plaintiff=s claims - has been

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satisfied, McDonald, 45 Cal.4th at 99 (quotation marks and citations omitted), and pursuit of

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administrative remedies equitably tolls the statute of limitations so long as there was timely notice,

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lack of prejudice to the defendant, and reasonable, good faith conduct on the part of the plaintiff, id. at

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101-03.

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D.

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As stated above, Plaintiff alleges that Defendants Hinshaw and Johnson violated his First

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Amendment rights by charging him with prison rules violations in retaliation for his submitting

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grievances against other prison staff members.

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Analysis

“Prisoners have a First Amendment right to file grievances against prison officials and to be

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free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing

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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Also protected by the First Amendment is the

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right to pursue civil rights litigation in federal court without retaliation. Silva v. Di Vittorio, 658 F.3d

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1090, 1104 (9th Cir. 2011). “Within the prison context, a viable claim of First Amendment retaliation

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entails five basic elements: (1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). The injury

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element of a retaliation claim is the adverse action. In this instance, the adverse action Plaintiff alleges

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are the rules violation reports issued against him by Defendants Hinshaw and Johnson charging him

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with filing false reports and indecent exposure. Plaintiff’s retaliation claims thus accrued when he

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became aware that Defendants issued the allegedly retaliatory rules violation reports.

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As previously stated, Plaintiff alleges that Defendant Hinshaw issued a retaliatory rules

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violation report against him on May 18, 2005, charging him with filing a false report. The issuance of

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the rules violation report by Hinshaw placed Plaintiff on notice that Hinshaw was charging him with a

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rules violation, and Plaintiff’s retaliation claim against Hinshaw accrued on that date.

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Accrual of Statute of Limitations

As to Defendant Johnson, Plaintiff alleges that Johnson issued a retaliatory rules violation
report against him charging him with indecent exposure. (ECF No. 18, 2nd Amd. Compl. at 13-15.)

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Plaintiff does not provide the date the rules violation was issued, but indicates that on February 15,

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206, a hearing on Defendant Johnson’s charge of indecent exposure was held before Lieutenant J.

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Gallagher. (Id. at 16.) Exhibit B attached to Plaintiff’s original complaint, identifies the date of the

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rules violation report as January 22, 2006. (ECF No. 1, Compl. at 31.) Accordingly, Plaintiff’s

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retaliation claim against Defendant Johnson accrued on January 22, 2006.

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Thus, Plaintiff’s claims accrued on May 18, 2005, and January 22, 2006, and Plaintiff’s instant
action filed under the mailbox rule on February 22, 2011, is untimely.

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2.

Tolling Provision for Inmates

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California tools its limitations periods for two years where the person bringing the action is

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imprisoned on criminal charges. Cal. Code Civ. Proc., § 352.1. In this instance, extending the

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personal injury limitations period from two years to four years, does not aid Plaintiff is rendering his

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claims timely filed. With the benefit of four years, Plaintiff’s claim against Defendant Hinshaw would

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have been timely if filed by May 18, 2009. Adding four years to Plaintiff claim against Defendant

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Johnson, it would have been timely if filed by January 22, 2010. However, Plaintiff did not initiate the

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instant action until February 22, 2011.

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3.

Tolling During Exhaustion of Administrative Remedies

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The applicable limitations period must be tolled while a prisoner completes the mandatory

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exhaustion requirement. Brown v. Valoff, 422 F.3d 926, 942-943 (9th Cir. 2005). The California

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Department of Corrections and Rehabilitation (CDCR) has an administrative appeals system for
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inmate grievances. Cal. Code Regs., tit. 15, § 3084.1(a). There are three levels of review within the

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CDCR administrative appeals system, and absent a satisfactory appeal at a lower level, the third level

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of review constitutes the final level of review for exhaustion purposes. Id. at §§ 3084.1(b), 3084.7.

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Exhibits A and B attached to Plaintiff’s original complaint filed in this case (Compl., ECF No.

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1) demonstrate that Plaintiff utilized the appeals process regarding the allegedly retaliatory rules

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violation reports issued by Defendants Hinshaw and Johnson. The third-level decision concerning the

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rules violation report issued by Defendant Hinshaw was rendered on March 17, 2006. (Compl. Ex.

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A.) Adding the two-year personal injury limitations period plus two years of tolling for incarceration,

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Plaintiff had until March 17, 2010, to file his retaliation claim against Defendant Hinshaw.

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With regard to Defendant Johnson, the third-level appeal decision concerning the rules

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violation report issued by Johnson was rendered on November 30, 2006. (Compl. Ex. B.) Adding the

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two-year personal injury limitations period plus two years of tolling for incarceration, Plaintiff had

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until November 30, 2010, to bring his retaliation claim against Johnson.

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Because, even with the benefit of the mailbox rule, Plaintiff did not file the instant complaint

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until February 22, 2011, and his retaliation claims against Defendants Hinshaw and Johnson are barred

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by the statute of limitations.

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Plaintiff’s contention in his opposition that based on the retaliatory nature of his claims, he is

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not required to satisfy the favorable termination requirement set forth in Heck v. Humphrey, 512 U.S.

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477 (1994), is inapposite. Under Heck, a plaintiff cannot “recover damages for [an] allegedly

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unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness

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would render a conviction or sentence invalid” unless the conviction has been reversed, expunged, or

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declared invalid. 512 U.S. at 486-487. Plaintiff appears to argue that because his claim has merit, it

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cannot be barred from review. However, having a just claim does not excuse failure to file within the

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limitations period. Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 349

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(1944); see also Baldwin County Welcome Cir. V. Brown, 466 U.S. 147, 152 (1984) (dismissing

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action as untimely and noting that “[p]rocedural requirements established by Congress for gaining

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access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular

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litigants.”). Furthermore, Plaintiff fails to acknowledge and address the argument relating to the
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statute of limitations bar. Accordingly, Defendants’ motion to dismiss the action as time-barred

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should be granted.

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III.

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RECOMMENDATION

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Based on the foregoing, IT IS HEREBY RECOMMENDED that:

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Defendants’ motion to dismiss the action as time-barred be GRANTED; and

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The instant action be dismissed in its entirety.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days

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after being served with these Findings and Recommendations, the parties may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The parties are advised that failure to file objections within the specified time

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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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February 20, 2015
UNITED STATES MAGISTRATE JUDGE

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