Harris v. German et al

Filing 15

ORDER to SHOW CAUSE why case should not be dismissed as barred by Statute of Limitations 8 signed by Magistrate Judge Gary S. Austin on 2/24/2017. Show Cause Response due by 3/29/2017.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEVONTE B. HARRIS,
Plaintiff,

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v.

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1:15-cv-01462-GSA-PC
ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED AS BARRED BY
STATUTE OF LIMITATIONS
(ECF No. 8.)

HUMBERTO GERMAN, et al.,
Defendants.

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THIRTY-DAY DEADLINE TO RESPOND

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I.

BACKGROUND

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Devonte B. Harris (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on September 28, 2015. (ECF No. 1.)

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On December 18, 2015, Plaintiff consented to Magistrate Judge jurisdiction in this

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action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF

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No. 7.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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On March 14, 2016, Plaintiff filed the First Amended Complaint, which is now before
the court for screening. (ECF No. 8.)
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II.

SCREENING REQUIREMENT

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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).

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

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that the action or

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appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint is required to contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are

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taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart

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Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to

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‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as

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true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting

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this plausibility standard. Id.

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III.

PLAINTIFF’S ALLEGATIONS IN THE FIRST AMENDED COMPLAINT

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Plaintiff is presently a state inmate in the custody of the California Department of

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Corrections and Rehabilitation (CDCR), incarcerated at California State Prison-Sacramento in

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Represa, California. The events at issue in the First Amended Complaint allegedly occurred at

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Corcoran State Prison (CSP) in Corcoran, California, when Plaintiff was incarcerated there.

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Plaintiff brings this civil rights action against defendant prison officials employed by the

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CDCR at CSP. Plaintiff names as defendants Correctional Officer (C/O) Humberto German,
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C/O Philip Holguin, C/O Summer Cordova, C/O L. Borgess, C/O R. Womack, C/O D.

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Lovelady, C/O D. Menzie, C/O D. Botello, C/O S. Pano, C/O R. Leal, C/O R. Burnitzki,

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Sergeant (Sgt.) J. Martinez, Sgt. W. Rasley, and Sgt. J. Hubbard (collectively, “Defendants”).
Plaintiff’s allegations follow.

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On February 24, 2011, Plaintiff was housed in the

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Security Housing Unit (SHU). At about 1:15 p.m., C/Os were releasing prisoners to the

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exercise modules. C/Os German, Holguin, Menzie, Lovelady, and Botello skipped over

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Plaintiff’s cell during yard and then ignored him when he called to them to ask why. C/O

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Womack was working in the control booth. C/Os German and Holguin came back and released

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Plaintiff after everyone else had been released. Plaintiff stripped out and C/O German kept

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asking him, “What’s the problem?” C/O German continued to hold Plaintiff’s clothing as

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Plaintiff stood naked, apparently expecting an answer. Plaintiff said, “I’m done stripping out,

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can I have my clothes back?” Plaintiff got dressed and C/O German handcuffed him. As they

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escorted Plaintiff to the yard, C/O Holguin placed Plaintiff against the wall by the exit door of

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the building and began pressing him up against the wall. C/O German said, “You are getting

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your yard, so what’s the problem?” Plaintiff said that C/O Holguin was pressing him hard into

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the wall unnecessarily. C/O German said to shut up or he was not going to receive yard time.

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Plaintiff said he knows the law and has family who care, so he doesn’t care what they do. C/O

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German said shut up and don’t talk. They exited the building and walked toward the yard

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cages.

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“What’s going on?” Plaintiff began to tell him and C/O German jerked Plaintiff to a standstill

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and said, “I thought I told you not to talk.” At seeing this, Sgt. Martinez said to just escort

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Plaintiff back to his cell. Upon entering the building, C/Os German and Holguin slammed

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Plaintiff’s face into the divider of their office window. C/O Holguin held Plaintiff’s face

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sideways against the window. C/O German kicked Plaintiff’s legs apart, making him do the

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splits. Holguin shouted, “Fuck the law and fuck your family.” German said, “What you wanna

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do?” over and over. C/O German threatened to take Plaintiff to the ground. Sgt. Martinez, C/O

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Menzie, C/O Lovelady, and C/O Botello entered the building. C/O Womack witnessed from

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the control booth. They did nothing nor said nothing while Holguin had Plaintiff’s face pressed

Sgt. Martinez saw them from the track holding Plaintiff aggressively and asked,

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against the window and German had Plaintiff’s legs unnaturally spread apart. Plaintiff said he

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just wanted to go to yard, and German said, “You are not going to yard, so where do you want

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to go, back to your cell?” Plaintiff said he wanted to talk to the lieutenant for an excessive

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force interview. Martinez said, “You’ll get what you got coming, you’ll get your excessive

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force interview.” C/Os German and Holguin escorted Plaintiff back to his cell. Plaintiff

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suffered knots on his forehead, a swollen cheek, pain in the neck, pain on the right side of his

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chest, and pain in the small of his back. On February 26, 2011, Sgt. Hubbard interviewed

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Plaintiff and documented his injuries on video.

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Plaintiff was medically evaluated by a nurse. On February 27, 2011, a RN evaluated Plaintiff.

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On February 29, 2011, another RN evaluated him. At some point, Sergeants Hubbard and

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Rasley destroyed the video documenting Plaintiff’s injuries while the injuries were still visible

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on February 26, 2011. Plaintiff filed a prison appeal. On May 16, 2011, two sergeants took

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another videotaped interview of Plaintiff, but his injuries had already healed. They claimed to

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have lost the February 26, 2011 video.

Sgt. Rasley operated the video camera.

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On March 10, 2011, C/O German denied Plaintiff his breakfast in retaliation for the

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excessive force allegations Plaintiff made against him. C/O German refused to take Plaintiff’s

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inmate request form asking why.

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On April 18, 2011, C/Os Cordova and Borgess retaliated against Plaintiff for the

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allegations he made against their coworkers German and Holguin. They denied Plaintiff

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breakfast and lunch, and then falsified his segregation record, saying they had delivered both of

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the meals to Plaintiff. Later that morning, C/O Menzie escorted the nurse. When the nurse

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delivered Plaintiff’s medication, Plaintiff held the food port on his cell and told C/O Menzie he

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wanted to see the sergeant about his breakfast and lunch being withheld.

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continued escorting the nurse. C/O Holguin came to Plaintiff’s cell to see if he wanted to go to

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a disciplinary hearing. Plaintiff refused because he was holding the food port. C/O Holguin

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summoned Sgt. Martinez who ordered C/O Holguin to pepper spray Plaintiff to secure the food

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port. C/O Holguin pepper sprayed Plaintiff and Plaintiff released the food port and went to the

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middle of his cell, turning his back. C/O Holguin put his pepper spray through the food port
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C/O Menzie

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and began spraying Plaintiff in the back of his head, neck, and back. Plaintiff suffered severe

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burning sensations and chest pain. C/O Borgess and another C/O escorted Plaintiff to the

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hospital to be evaluated. C/Os Borgess and Cordova falsified Plaintiff’s segregation records,

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reporting that Plaintiff had refused his breakfast and lunch. Plaintiff was moved to a different

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housing unit in the SHU.

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On August 28, 2011, C/Os Holguin and Pano came to Plaintiff’s housing unit to escort

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him to the yard. They conducted an unclothed body search, handcuffed Plaintiff behind his

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back, and began walking outside toward the yard cages. C/O Holguin told Plaintiff to pull up

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his boxers, which was impossible because Plaintiff was handcuffed behind his back. Plaintiff

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told C/O Holguin to pull his eyes up. C/O Holguin then began escorting Plaintiff to the rotunda

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of his housing unit. There was a cage located there and while guiding Plaintiff into it, C/O

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Holguin shoved Plaintiff into the wall, causing pain in his shoulder. C/O Holguin then secured

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the cage and left. C/Os Lovelady and Burnitzki walked by and asked Plaintiff what was going

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on. Plaintiff said that C/O Holguin had used excessive force against him and the sergeant

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should be notified. They took no action regarding this matter. Afterward, C/O Holguin came

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to the rotunda to take Plaintiff back to his cell when yard time was over. C/Os Holguin,

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Burnitzki, and Leal took Plaintiff to his cell but did not have the control booth C/O close the

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cell door. They came all the way into the cell with Plaintiff. C/Os Burnitzki and Holguin

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began pushing Plaintiff back and forth to each other several times. C/O Holguin then pushed

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Plaintiff into the wall, jammed his left arm into Plaintiff’s back, and used his right hand to press

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Plaintiff’s face against the wall, while C/O Burnitzki pulled on the handcuffs from behind. C/O

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Holguin told Plaintiff, “You’re not shit, you are going to stop disrespecting me and I don’t care

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about any lawsuit.” Plaintiff said he did not disrespect him. Holguin was mad because he was

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under investigation by internal affairs for previously using excessive force against Plaintiff.

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C/O Burnitzki then said, “Internal affairs are not going to do shit.” Holguin said next time they

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are going to really hurt Plaintiff. C/O Holguin then pulled Plaintiff by the handcuffs to the cell

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door and took his handcuffs off.

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IV.

Statute of Limitations

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In federal court, federal law determines when a claim accrues, and “under federal law, a

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claim accrues ‘when the plaintiff knows or has reason to know of the injury which is the basis

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of the action.’” Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1048 (9th Cir.

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2008) (quoting Two Rivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999); Fink v. Shedler, 192

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F.3d 911, 914 (9th Cir. 1999)). In the absence of a specific statute of limitations, federal courts

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should apply the forum state’s statute of limitations for personal injury actions. Lukovsky, 535

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F.3d at 1048; Jones v. Blanas, 393 F.3d 918, 927 (2004); Fink, 192 F.3d at 914. California's

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two-year statute of limitations for personal injury actions applies to 42 U.S.C. § 1983 claims.

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See Jones, 393 F.3d at 927. California’s statute of limitations for personal injury actions

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requires that the claim be filed within two years. Cal. Code Civ. Proc., § 335.1.

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

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should also borrow all applicable provisions for tolling the limitations period found in state

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law. See Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 2000 (1989). Pursuant to

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California Code of Civil Procedure, § 352.1, a two-year limit on tolling is imposed on

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prisoners. Section 352.1 provides, in pertinent part, as follows:

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(a) If a person entitled to bring an action, . . . is, at the time the
cause of action accrued, imprisoned on a criminal charge, or in
execution under the sentence of a criminal court for a term less
than for life, the time of that disability is not a part of the time
limited for the commencement of the action, not to exceed two
years.

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Cal. Code Civ. Proc., § 352.1.

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Although the statute of limitations is an affirmative defense that normally may not be

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raised by the Court sua sponte, it may be grounds for sua sponte dismissal of an in forma

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pauperis complaint where the defense is complete and obvious from the face of the pleadings or

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the court’s own records. Franklin v. Murphy, 745 F.2d 1221, 1228-1230 (9th Cir. 1984). See

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Levald, Inc. v. City of Palm Desert, 988 F.2d 680, 686-87 (9th Cir. 1993). That is the case here

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– the defense appears complete and obvious from the face of the complaint.

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Plaintiff’s alleges in the First Amended Complaint that Defendants violated his rights

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during events occurring from February 24, 2011, to August 28, 2011.

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allegations, it appears that the statute of limitations for Plaintiff’s injuries began to run, at the

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latest, on August 28, 2011. Plaintiff did not file this lawsuit until more than four years later, on

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September 28, 2015. Therefore, the court finds that on the face of the complaint, Plaintiff’s

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claims are barred by the statute of limitations.

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V.

Based on these

CONCLUSION AND ORDER

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The court finds that on the face of Plaintiff’s First Amended Complaint for this action,

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his claims are barred by the statute of limitations. Therefore the court shall issue an order to

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show cause. Plaintiff is required to file a response to the order within thirty days, showing why

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this case should not be dismissed as barred by the statute of limitations.

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ORDER TO SHOW CAUSE

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Within thirty days from the date of service of this order, Plaintiff

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is required to file a response in writing, showing why this case

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should not be dismissed as barred by the statute of limitations;

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and

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2.

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Failure to comply with this order shall result in the dismissal of
this case.

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IT IS SO ORDERED.
Dated:

February 24, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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