Lang v. Sacramento Sheriff Department, et al.

Filing 28

ORDER signed by Magistrate Judge Edmund F. Brennan on 03/23/17 ordering this action is dismissed with prejudice as time-barred. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS LANG, JR.,

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Plaintiff,

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No. 2:14-cv-0777 EFB P

v.

ORDER

SACRAMENTO SHERIFF
DEPARTMENT, et al.,
Defendants.

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I.

Introduction
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. On October 23, 2015 and July 14, 2016 he filed two motions which the court

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construed as motions for default judgment. ECF Nos. 21 & 23. On August 2, 2016, the court

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denied those motions without prejudice due to: (1) plaintiff’s failure to adequately explain how he

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arrived at his requested damages; (2) the factual disputes which typically underlie Eighth

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Amendment excessive force claims; and (3) the strong policy favoring merits-based decisions.

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ECF No. 24 at 4. In that same order, the court noted that plaintiff’s allegations appeared to arise

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from an incident which occurred in 2005 and, as such, would be barred under California’s two

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year statute of limitations. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (“For actions

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under 42 U.S.C. § 1983, courts apply the forum state’s statute of limitations for personal injury

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actions, along with the forum state's law regarding tolling, including equitable tolling, except to

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the extent any of these laws is inconsistent with federal law.”); Butler v. Nat'l Cmty. Renaissance

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of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014) (“California’s statute of limitations for personal

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injury claims is two years.”). Accordingly, plaintiff was ordered to show cause as to why this

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action – filed in March 2014 (ECF No. 1) - should not be dismissed as barred by the statute of

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limitations.1 ECF No. 24 at 4-5. Plaintiff’s response admits that the excessive force incident

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occurred outside the scope of the statute of limitations, but argues that two factors support tolling.

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ECF No. 25 at 1-2. First, he contends that he filed a 2005 claim against the Sacramento County

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Sheriff’s Department, although he does not identify the specific venue in which that complaint

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was filed. Id. Second, he contends that, since the date of the excessive force incident, he has

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been ‘locked up in mental institutions.’ Id. at 2. For the reasons stated hereafter, the court rejects

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both arguments.

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II.

Analysis

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A. Plaintiff’s 2005 State Claim

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Plaintiff has attached the same county claim form to both his complaint and his response

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which indicates that his state claim was filed on September 23, 2005 and then re-filed on May 18,

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2006. ECF No. 1 at 4; ECF No. 25 at 7.2 Therein he describes his injury and requests, as he does

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in this suit, 2.2 million dollars in damages for his broken shoulder and the ‘impairment’ of his

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arm. ECF No. 1 at 4. This claim is inadequate to toll the statute of limitations for this federal

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action, however, because the remedies available under section 1983 are separate and independent

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The statute of limitations is generally an affirmative defense which is not raised by the
court sua sponte. It may, however, be grounds for sua sponte dismissal of an in forma pauperis
complaint where, as here, the defense is complete and obvious from the face of the pleading or
the court’s own records. Franklin v. Murphy, 745 F.2d 1221, 1228-1230 (9th Cir. 1984); Levald,
Inc. v. City of Palm Desert, 998 F.2d 680, 686-687 (9th Cir. 1993).
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The court notes that the claim document in plaintiff’s response to the show cause order
has been altered to indicate that he seeks five-hundred dollars a day for his injuries. ECF No. 25
at 7. The documents are identical in all other respects, however. ECF No. 1 at 4; ECF No. 25 at
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from any state remedies. See Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 279, 105 S. Ct.

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1938 (1985) (“Congress therefore intended that the remedy provided in § 1983 be independently

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enforceable whether or not it duplicates a parallel state remedy.”). California courts have reached

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similar conclusions. See, e.g., Williams v. Horvath, 16 Cal. 3d 834, 842, 129 Cal. Rptr. 453, 548

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P.2d 1125 (1976) (“Similarly, the California remedy of recourse to the Tort Claims Act need not

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be first sought before a plaintiff is free to invoke the Civil Rights Act. While there may be

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considerable overlap between the two statutes in given circumstances, the purposes underlying

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them are distinct.”). Accordingly, plaintiff’s state claim did not preclude his filing of a separate

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section 1983 action within the applicable statute of limitations.

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B. Plaintiff’s Mental State

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Plaintiff’s second argument is that, as of the date of the incident, he has been mentally

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impaired and confined to psychiatric institutions. ECF No. 25 at 2. He does not offer the

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specifics of his mental health issues, nor does he explicitly contend that those issues prevented

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him from filing a timely section 1983 claim. Nevertheless, the court construes this as an

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argument that insanity should toll the California statute of limitations.

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California Civil Procedure Code § 352(a) allows for tolling if, at the time the cause

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accrued, the claimant lacked the legal capacity to make decisions. More specifically, this

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provision has been held to apply to persons who are “incapable of caring for his [or her] property

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or transacting business, or understanding the nature or effects of his [or her] acts. . . .” Alcott

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Rehab. Hosp. v. Superior Court, 93 Cal. App. 4th 94 (Cal. Ct. App. 2001).3 However, “[n]o

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person can avail himself of a disability, unless it existed when his right of action accrued.” Cal.

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Civ. Proc. Code § 357. The court must give effect to these state tolling provisions. See Hardin v.

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Straub, 490 U.S. 536, 543-44 (1989). Federal law, however, determines when a cause of action

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accrues and when the statute of limitations starts to run in a section 1983 action. Wallace v. Kato,

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549 U.S. 384, 388 (2007). “Under federal law, a claim accrues when the plaintiff knows or has

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Prior to a 2014 amendment, the text of section 352(a) substituted “insane” for “lacking
the legal capacity to make decisions.” As such, many court decisions make explicit reference to
that term in discussing this section.
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reason to know of the injury which is the basis of the action.” TwoRivers v. Lewis, 174 F.3d 987,

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991 (9th Cir. 1999). A section 1983 action is commenced by filing a complaint with the court.

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Sain v. City of Bend, 309 F.3d 1134, 1138 (9th Cir. 2002) (“[W]e hold that a § 1983 action is

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commenced in federal district court for purposes of the statute of limitations when the complaint

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is filed.”).

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Turning to the substance of section 352(a), the fact that a claimant was mentally impaired

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is not, on its own, sufficient to warrant tolling under this section. See, e.g., Snyder v. Boy Scouts

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of Am., Inc., 205 Cal. App. 3d 1318 (Cal. Ct. App. 1988) (holding that “‘post-traumatic

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syndrome’ does not constitute insanity under the statute”); Hsu v. Mt. Zion Hosp., 259 Cal. App.

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2d 562 (Cal. Ct. App. 1968) (the fact that a claimant was “mentally ill” and had been committed

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to a mental health facility was not, on its own, sufficient to establish insanity within the meaning

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of section 352(a)). Here, plaintiff alleges only that he has been continuously confined to mental

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institutions since the 2005 excessive force incident. ECF No. 25 at 2. He has not alleged or

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otherwise provided any evidence that his mental issues have prevented him from caring for his

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property, transacting business, or understanding the nature or effects of his actions. See Hinton v.

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NMI Pac. Enters., 5 F.3d 391, 395 (9th Cir. 1993) (holding that “[t]he burden of alleging facts

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which would give rise to tolling falls upon the plaintiff.”). Moreover, based on the information in

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plaintiff’s state claim form, the relevant cause of action accrued on June 6, 2005 – the date the

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defendants allegedly used excessive force against him and on which he had an obvious reason to

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know of his injury. ECF No. 1 at 4. The state claim form also plainly indicates that plaintiff was

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mentally capable of pursuing a legal remedy for this injury on both September 23, 2005 (the date

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he initially filed his state claim) and on May 18, 2006 (the date on which he purportedly refiled

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that state claim). Id. As such, it is impossible to conclude that plaintiff’s mental disability, even

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assuming that it met the requirements of section 352(a) on the date the injury accrued, had the

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requisite continuity to toll the statute of limitations until the commencement of this action on

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March 26, 2014 (ECF No. 1). See Rose v. Petaluma & Santa Rosa Ry. Co., 64 Cal. App. 213,

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217 (1923) (“[I]t is a settled rule of construction that the exemption period cannot be extended by

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the connection of one disability with another; in other words, a succession of disabilities cannot
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be tacked upon the first disability so as to prevent the operation of the statute.”) disapproved on

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other grounds in Harris v. Industrial Accident Comm'n of Cal., 204 Cal. 432, 438 (1928).

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III.

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Conclusion
The court has provided plaintiff an opportunity to explain how his claims fall within the

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applicable statute of limitations and he has failed to do so. Accordingly, the court concludes that

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the deficiencies outlined above are not capable of being cured by any amendment and, on that

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basis, the court orders this action DISMISSED with prejudice as time-barred. See Lopez v. Smith,

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203 F.3d 1122, 1127 (9th Cir. 2000) (“[A] district court should grant leave to amend even if no

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request to amend the pleading was made, unless it determines that the pleading could not possibly

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be cured by the allegation of other facts.”) (emphasis added).

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DATED: March 23, 2017.

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