Matthew Powell v. Barron et al

Filing 8

ORDER to SHOW CAUSE why Complaint Should Not be Dismissed as Barred by the Statute of Limitations, signed by Magistrate Judge Stanley A. Boone on 4/17/15. Show Cause Response Due Within Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MATTHEW POWELL,

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Plaintiff,

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v.
M. BARRON, et al.,
Defendants.

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Case No.: 1:15-cv-00089-SAB (PC)
ORDER TO SHOW CAUSE WHY COMPLAINT
SHOULD NOT BE DISMISSED AS BARRED BY
THE STATUTE OF LIMITATIONS
[ECF No. 1]

Plaintiff Matthew Powell is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff filed original complaint on January 20, 2015.

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I.

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DISCUSSION

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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Where the running of the statute of limitations is apparent on the face of the complaint, dismissal for

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failure to state a claim is proper. See Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir.

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1993); Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984).
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Plaintiff brings this action against correctional officers at Corcoran State Prison. Plaintiff

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names M. Barron, R. Goings, I. Rivera, R. Hubach, K. Daveiga, J. Jones, Maurice Junious, Derral G.

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Adams, Jack Batchelor, and N. Grannis, as Defendants.

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In January 2007, Plaintiff’s cell had been searched approximately three to four times and items

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were removed from his cell without correctional officers leaving a cell search receipt. Plaintiff raises

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various potential claims for relief, including due process violations, retaliation, excessive force, and

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denial of access to the courts. The event that gives rise to Plaintiff’s various claims occurred on

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January 30, 2007, when his cell was searched by Defendants Barron and Goings and certain personal

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and legal property was confiscated.

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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 954-955.

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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Plaintiff was incarcerated at the time he filed suit and is entitled to application of the two year

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tolling provision. Thus, he had one year, plus two years for tolling, from the date the claims accrued.

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Plaintiff’s claims accrued on or around January 30, 2007, and the instant action initiated on January

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20, 2015, appears to be filed well beyond the limitations period. Although the statute of limitations is

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an affirmative defense that normally may not be raised by the Court sua sponte, it may be grounds for

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sua sponte dismissal of an in forma pauperis complaint where the defense is complete and obvious

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from the face of the pleading or the court’s own records. Franklin v. Murphy, 745 F.2d 1221, 1228-

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1230 (9th Cir. 1984); Levald, Inc. v. City of Palm Desert, 988 F.2d 680, 686-687 (9th Cir. 1993). In

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this instance, the statute of limitations defense appears obvious from the face of the complaint.

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Therefore, the Court will order Plaintiff to show cause why this action should not be dismissed as time

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barred.

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II.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Within thirty (30) days from the date of service of this order, Plaintiff shall show cause
why this action should not be dismissed as time barred; and

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2.

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Failure to respond to this order will result in dismissal of the action. Local Rule 110.

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IT IS SO ORDERED.

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Dated:

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April 17, 2015
UNITED STATES MAGISTRATE JUDGE

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