(PC) Bland v. Moffett et al

Filing 26

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sheila K. Oberto on 2/12/2021 to grant Defendants' Motion to partially Dismiss complaint 20 . Referred to Judge NONE; Objections to F&R due within 21-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA BLAND, 12 Plaintiff, 13 14 v. D. MOFFETT, et al., 15 Defendants. Case No. 1:19-cv-01750-NONE-SKO (PC) FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ MOTION TO PARTIALLY DISMISS COMPLAINT (Doc. 20) 21-DAY DEADLINE 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 17 18 action brought pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s Eighth 19 Amendment failure-to-protect claims against Defendants Jaime and Stark and on a single First 20 Amendment retaliation claim against Defendant Moffett. (Doc. 14; see also Doc. 8.) Before the Court is Defendants’ motion to partially dismiss Plaintiff’s complaint pursuant 21 22 to Federal Rule of Civil Procedure 12(b)(6). (Doc. 20.) Defendants move to dismiss the claim 23 against Defendant Moffett on the ground that it is barred by the statute of limitations. (Id.) For the 24 reasons set forth below, the Court recommends that the motion be granted. 25 I. LEGAL STANDARD 26 A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.” Navarro 27 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In resolving a 12(b)(6) motion, the Court’s review is 28 generally limited to the “allegations contained in the pleadings, exhibits attached to the complaint, 1 and matters properly subject to judicial notice.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 2 F.3d 1025, 1030-31 (9th Cir. 2008) (internal quotation marks and citations omitted). Dismissal is 3 proper if there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged 4 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 5 1988) (citation omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 6 7 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 8 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court 9 “accept[s] as true all well-pleaded allegations of material fact, and construe[s] them in the light 10 most favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 11 (9th Cir. 2010) (citation omitted). In addition, the Court construes pleadings of pro se prisoners 12 liberally and affords them the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 13 2010) (citation omitted). However, “the liberal pleading standard … applies only to a plaintiff’s 14 factual allegations,” not his legal theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). 15 II. DISCUSSION 16 A. Statute of Limitations in Section 1983 Actions 17 “A claim should only be dismissed pursuant to Rule 12(b)(6) based on a statute of 18 limitations where the running of the statute of limitations is apparent on the face of a complaint, 19 or where material subject to judicial notice, incorporated by reference into the complaint, or 20 attached to the complaint indicates that a claim is necessarily barred.” Stevenson v. Holland, No. 21 1:16-cv-01831-AWI-SKO, 2017 WL 2958731, at *4 (E.D. Cal. 2017) (internal quotation marks 22 and citations omitted). 23 The statute of limitations for section 1983 actions “is the personal injury statute of 24 limitations of the state in which the cause of action arose.” Alameda Books, Inc. v. City of Los 25 Angeles, 631 F.3d 1031, 1041 (9th Cir. 2011) (citations omitted). In California, the statute of 26 limitations for personal injury claims is two years. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 27 2004) (citing Cal. Civ. Proc. Code § 335.1). Thus, the statute of limitations for section 1983 28 actions arising in California is also two years. Jackson v. Barnes, 749 F.3d 755, 761 (9th Cir. 2 1 2 2014) (citation omitted). In addition to the statute of limitations, federal courts apply “the forum state’s law 3 regarding tolling, including equitable tolling,” for section 1983 actions. Jones, 393 F.3d at 927 4 (citation omitted). In California, the statute of limitations is tolled for a maximum of two years if 5 and while a plaintiff is imprisoned, unless the plaintiff is serving a sentence of life without the 6 possibility of parole. Cal. Civ. Proc. Code § 352.1(a); Brooks v. Mercy Hosp., 1 Cal. App. 5th 1, 7 7 (Cal. Ct. App. 2016) (“only those sentenced to life without possibility of parole should be 8 excluded from the tolling provision” of section 352.1) (citations omitted). The statute of 9 limitations is also “tolled while a prisoner completes the mandatory exhaustion process.” Brown 10 11 v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (citations omitted). Additionally, equitable tolling “operates independently … of the Code of Civil Procedure 12 to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and 13 fairness.” Jones, 393 F.3d at 928 (internal quotation marks and citation omitted). “Under 14 California law, a plaintiff must meet three conditions to equitably toll a statute of limitations: (1) 15 defendant must have had timely notice of the claim; (2) defendant must not be prejudiced by 16 being required to defend the otherwise barred claim; and (3) plaintiff’s conduct must have been 17 reasonable and in good faith.” Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999) (internal 18 quotation marks and citation omitted). 19 B. Analysis 20 Plaintiff alleges that, in October of 2015, Correctional Sergeant Moffett threatened to 21 “reveal [his] committed offenses to other inmates” if he did not stop filing administrative 22 grievances. (Doc. 1 at 4.) Plaintiff further alleges that, on November 23, 2015, an inmate attacked 23 him. (Id.) According to Plaintiff, while he was being attacked, he “yelled, ‘what did I do?’” to 24 which the other “inmate yelled back, ‘the Sgt. said you’re a chomo’!” (Id.) Based on these 25 allegations, the Court found that Plaintiff states a cognizable claim of retaliation against 26 Defendant Moffett. (Doc. 8 at 4.) 27 28 Defendants contend that Plaintiff’s claim against Defendant Moffett is barred by the statute of limitations. The Court agrees. 3 1 As explained above, the statute of limitations for section 1983 actions arising in California 2 is two years. Applying the additional two years provided by California Code of Civil Procedure § 3 352.1, Plaintiff had four years to file suit after his cause of action accrued, or until November 23, 4 2019. Plaintiff initiated this action on December 16, 2019. Plaintiff admits that he failed to 5 exhaust his administrative remedies as required by the Prison Litigation Reform Act. (Doc. 1 at 6 4.) Therefore, no additional tolling with respect to the exhaustion process applies. 7 In his opposition to Defendants’ motion to dismiss, Plaintiff contends that the Court 8 should abide by the prison mailbox rule, and that, under this rule, he timely filed suit.1 (Doc. 23 at 9 1.) Under the prison mailbox rule, a document filed by a prisoner is deemed filed “at the time [he] 10 delivered it to the prison authorities for forwarding to the court clerk.” Douglas v. Noelle, 567 11 F.3d 1103, 1106 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff is 12 correct that the “rule applies to section 1983 suits filed by pro se prisoners.” Id. at 1107. In response, Defendants request that “the Court take judicial notice of the date Plaintiff 13 14 submitted his complaint to prison authorities for filing.” (Doc. 25 at 1.) In support of their 15 request, Defendants submit a declaration by the Library Technical Assistant at California State 16 Prison, Corcoran, who attests that, in her “regular scope of business, [she] track[s] and log[s] each 17 inmate complaint as it goes through the filing process.” (Doc. 25-1 at 1.) She further attests that 18 the records of such activities “are kept in the ordinary course of business,” and that the relevant 19 dates are “input at or near the time of receipt.” (Id. at 2.) According to her records, a printout of 20 which is attached to her declaration, the Library Technical Assistant received Plaintiff’s 21 complaint for this action on December 4, 2019. (Id. at 2, 4.) 22 Based on the above records, the Court takes judicial notice of the fact that Plaintiff 23 delivered his complaint to prison authorities for forwarding to the Court on December 4, 2019. 24 See Fed. R. Evid. 201(b)(2), 201(c)(2), 902(4)(A); see also Intri-Plex Techs., Inc. v. Crest Grp., 25 Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (“[a] court may take judicial notice of matters of public 26 record without converting a motion to dismiss into a motion for summary judgment, as long as 27 28 Plaintiff’s remaining arguments, which regard the constitutionality of California Code of Civil Procedure §§ 352, et seq., and 42 U.S.C. §§ 1997e, et seq., are frivolous and, therefore, merit no further discussion here. 1 4 1 the facts noticed are not subject to reasonable dispute”) (internal quotations marks and citations 2 omitted). Consequently, even when applying the prison mailbox rule, Plaintiff failed to timely file 3 his complaint within the four years afforded by the statute of limitations and California Code of 4 Civil Procedure § 352.1. 5 The Court does not find grounds to equitably toll the statute of limitations. Plaintiff had 6 four years to file suit, and he provides no explanation for why he waited so long to do so. During 7 that time, Plaintiff filed more than a dozen lawsuits in the Eastern District of California.2 Thus, 8 Plaintiff is not a novice to litigation. The Court, therefore, does not find that Plaintiff acted 9 reasonably or in good faith in pursuing his claim against Moffett so as to justify equitable tolling 10 in addition to the two years of statutory tolling already provided. 11 III. CONCLUSION AND RECOMMENDATIONS Based on the foregoing, the Court finds that Plaintiff’s claim against Defendant Moffett is 12 13 barred by the statute of limitations. Accordingly, the Court RECOMMENDS that Defendants’ 14 motion to dismiss (Doc. 20) be GRANTED and that Defendant Moffett and the claim against 15 him be DISMISSED with prejudice. 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days 18 of the date of service of these Findings and Recommendations, Plaintiff may file written 19 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 20 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 21 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 22 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 24 25 IT IS SO ORDERED. Dated: February 12, 2021 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 26 27 28 2 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 5 .

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