Curtis v. California Correctional Institution - Tehachapi, et al.

Filing 38

FINDINGS and RECOMMENDATION Regarding Defendants' Motion to Dismiss 34 , signed by Magistrate Judge Stanley A. Boone on 3/16/15. Referred to Judge Ishii; 30-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PARNELL CURTIS,

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Plaintiff,

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v.
CALIFORNIA CORRECTIONAL
INSTITUTION, et al.,

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Defendants.

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Case No.: 1:14-cv-00656-AWI-SAB (PC)
FINDINGS AND RECOMMENDATION
REGARDING DEFENDANTS’ MOTION TO
DISMISS
[ECF No. 34]

Plaintiff Parnell Curtis is appearing pro se in this civil rights action pursuant to 42 U.S.C. §
1983.

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I.

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BACKGROUND

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This action is proceeding on Plaintiff’s first amended complaint, filed on August 12, 2014,

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against Defendants J.G. Garcia, R.F. Tablas, R.W. Catlin, D.M. Coontz, Camacho, Mendoza, L.

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Escalante, and I.M. Vera for excessive force in violation of the Eighth Amendment, and against

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Defendants J.G. Garcia and R.F. Tablas for retaliation in violation of the First Amendment.

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On December 31, 2014, pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants

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Catlin, Coontz, Escalante, Garcia, Mendoza, Tablas, and Vera filed a motion to dismiss Plaintiff’s

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complaint as barred by the statute of limitations.1 (ECF No. 34.) Plaintiff filed an opposition to the

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motion on March 2, 2015. (ECF No. 37.) Defendants did not file a reply, and their motion to dismiss

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has been submitted upon the record without oral argument. Local Rule 230(l). For the reasons which

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follow, the Court recommends the motion be denied, without prejudice.

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II.

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DISCUSSION

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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 defendants which was

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not attached to the pleading if the plaintiff refers to the document extensively or if it forms the basis of

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the 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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Defendant Camacho has not yet been served.

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996-997; 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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A.

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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101-103.

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The Ninth Circuit has held that prisoners are entitled to equitable tolling of the statute of

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limitations while completing the mandatory exhaustion process. Brown v. Valoff, 422 F.3d 926, 942-

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943 (9th Cir. 2005).
Parties Positions’

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B.

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Defendants argue that Plaintiff’s claims should be dismissed because it is apparent from the

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face of the amended complaint that they were not timely filed. Defendants’ contend Plaintiff’s claims

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were not presented within the applicable two-year limitations period, and are not rendered timely by

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tolling provisions extending time due to his incarceration, or the use of the California Department of

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Corrections and Rehabilitation’s administrative appeal system. Defendants argue that giving Plaintiff

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the benefit of the doubt, and providing tolling for his alleged attempts to exhaust the administrative

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remedies, Plaintiff’s claim would have accrued on February 10, 2010, when he did not receive a

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response to his December 28, 2009, inmate grievance. Thus, Plaintiff had until February 10, 2014, to

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file his claims, and the instant action initiated on April 28, 2014, is barred as beyond the limitations

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period.2

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Contrary to Defendants’ contention, with application of the mailbox rule Plaintiff’s complaint was filed on April 16,
2014. ECF No. 1; see Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (“[T]he Houston mailbox rule applies to §
1983 complaints filed by pro se prisoners.”) (citing Houston v. Lack, 487 U.S. 266, 275-276 (1988)).

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In opposition, Plaintiff argues and reiterates that he attempted to exhaust his administrative

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remedies by submitting three separate inmate grievances, one on November 18, 2009, one on

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December 10, 2009, and one on December 28, 2009. Plaintiff alleges that the Warden’s office and the

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appeals coordinator refused to process any of the appeals.

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C.

Findings

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Plaintiff alleges he filed an inmate grievance in September 2009 and that Defendants Garcia

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and Tablas retaliated against him for exercising that right by subjecting him to harassment which

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resulted in an assault on October 20, 2009. Plaintiff further contends that as a result of Defendants

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Garcia’s and Tablas’s retaliation, he was the victim of an assault on October 20, 2009, by Defendants

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Garcia, Catlin, Coontz, Escalante, Mendoza, Tablas, and Vera. Plaintiff alleges that the seven

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Defendants beat him with their state-issued batons causing him serious injuries. Thus, as previously

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stated, Plaintiff is proceeding on a claim of retaliation and excessive force.

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“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).

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The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments

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Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citations omitted). For

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claims arising out of the use of excessive physical force, the issue is “whether force was applied in a

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good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

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Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (citing Hudson, 503 U.S. at 7) (internal

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quotation marks omitted); Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013).

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Plaintiff’s cause of action accrued on October 20, 2009, as to both his claim of retaliation and

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excessive force. Plaintiff became aware of his retaliation claim against Defendants Garcia and Tablas

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when they had him moved to a different cell because he was writing inmate grievances, and was

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allegedly threatened to be placed in administrative segregation because of it. Plaintiff’s claim of

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excessive force by Defendants Garcia, Tablas, Catlin, Coontz, Camacho, Mendoza, Escalante, and

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Vera occurred on October 20, 2009, when he contends all Defendants assaulted him during the cell

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move.

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Assuming Plaintiff is not serving a sentence of life without the possibility of parole, he had

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four years from the date of accrual of his claims to file suit, plus any additional time to which he is

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entitled under the doctrine of equitable tolling, which applies to administrative exhaustion.3
Defendants argue that Plaintiff’s last grievance was filed on December 28, 2009, and pursuant

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to the California Code of Regulations Plaintiff was entitled to a response within thirty working days

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thereafter on February 10, 2010. Defendants therefore argue that Plaintiff’s claims would have

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accrued on February 10, 2010, when he did not receive a response to his December 28, 2009 inmate

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

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incarceration, plus the period Plaintiff alleges he attempted to avail himself of the administrative

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grievance process, Plaintiff had until February 10, 2014, to bring the instant claims. Defendants

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conclude that Plaintiff’s initiation of the instant action on April 28, 2014, was untimely.
Plaintiff contends that prison officials did not respond to his grievances. Under these

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circumstances, the Court cannot determine what extent, if any, further appeal was necessary and when

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the time-frame to do so began and expired. Defendants cite no authority for the proposition that

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tolling of the limitations period ends immediately following the last day that a response to the inmate

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grievance was due, when allegedly no such response was received, and Plaintiff’s has challenged

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Defendants’ argument and the calculation date of the statute of limitations. Thus, the extent of

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Plaintiff’s administrative appeals and applicable tolling is unclear. Plaintiff’s claim that he did not

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If Plaintiff is serving a sentence of life without the possibility of parole, he is not entitled to the two-year tolling period
under section 352.1 and he would have only two years within which to file suit, plus any additional time under the doctrine
of equitable tolling.

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receive a response to his inmate grievances is sufficient enough that the Court cannot conclude as a

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matter of law, based on the face of the complaint, that his claims are time-barred. While it appears

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that Plaintiff may be entitled to some period of tolling for exhaustion of the administrative remedies,

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in view of the current record, the Court finds that the issue should be more appropriately addressed in

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a motion for summary judgment. Defendants’ motion to dismiss shall be denied, without prejudice,

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and Defendants may file a motion for summary judgment addressing the statute of limitations bar.

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III.

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RECOMMENDATION

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Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendants’ motion to

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dismiss be DENIED, without prejudice, to re-filling by way of motion for summary judgment, if so

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desired.
This Findings and Recommendation will be submitted to the United States District Judge

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

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after being served with these Findings and Recommendation, 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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Recommendation.” The parties are advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(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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March 16, 2015
UNITED STATES MAGISTRATE JUDGE

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