Adler v. McDonald et al

Filing 25

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 05/03/16 recommending that defendant's motion for summary judgment 16 be granted. MOTION for SUMMARY JUDGMENT 16 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRENT ADLER,

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Plaintiff,

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No. 2:15-cv-0789 TLN CKD P

v.

FINDINGS AND RECOMMENDATIONS

M. D. McDONALD, et al.,

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Defendants.

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I. Introduction
Plaintiff, a former state prisoner proceeding pro se and in forma pauperis, has filed this

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civil rights action seeking relief under 42 U.S.C. § 1983. This action proceeds on the First

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Amended Complaint (“FAC”) filed July 2, 2015. (ECF No. 6.) The court determined that service

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was appropriate for defendant Anderson on the claim that Anderson violated plaintiff’s Eighth

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Amendment right to humane conditions of confinement. (ECF No. 7; see ECF No. 5.)
Before the court is defendant’s motion for summary judgment arguing that plaintiff’s

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claim is time-barred. (ECF No. 16.) Plaintiff has filed “objections” to summary judgment,

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construed as an opposition, and defendant has filed a reply. (ECF Nos. 22 & 24.) For the reasons

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discussed below, the undersigned will recommend that defendant’s motion be granted.

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II. Summary Judgment Standards Under Rule 56

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Summary judgment is appropriate when it is demonstrated that there “is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by

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“citing to particular parts of materials in the record, including depositions, documents,

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electronically stored information, affidavits or declarations, stipulations (including those made for

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purposes of the motion only), admissions, interrogatory answers, or other materials. . .” Fed. R.

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Civ. P. 56(c)(1)(A).

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Summary judgment should be entered, after adequate time for discovery and upon motion,

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against a party who fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at trial. See

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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an

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essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”

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Id.

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If the moving party meets its initial responsibility, the burden then shifts to the opposing

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party to establish that a genuine issue as to any material fact actually does exist. See Matsushita

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the

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existence of this factual dispute, the opposing party may not rely upon the allegations or denials

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of their pleadings but is required to tender evidence of specific facts in the form of affidavits,

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and/or admissible discovery material, in support of its contention that the dispute exists or show

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that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed.

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R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the

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fact in contention is material, i.e., a fact that might affect the outcome of the suit under the

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governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv.,

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Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is

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genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving

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party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

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In the endeavor to establish the existence of a factual dispute, the opposing party need not

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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

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trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce

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the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”

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Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963

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amendments).

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In resolving the summary judgment motion, the evidence of the opposing party is to be

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believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the

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facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475

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U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s

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obligation to produce a factual predicate from which the inference may be drawn. See Richards

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v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902

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(9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than

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simply show that there is some metaphysical doubt as to the material facts . . . . Where the record

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taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

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‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).

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III. Discussion

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Plaintiff alleges that the events giving rise to his complaint occurred in November and

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December 2011 at High Desert State Prison, ending with plaintiff’s transfer to another prison on

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December 11, 2011. (FAC at 2-4.) During this period, plaintiff alleges, defendant shut off the

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electricity to a group of cells including plaintiff’s, disabling plaintiff’s toilet and creating

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unsanitary conditions. (Id.)

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It is undisputed that plaintiff was paroled on April 6, 2013. (ECF No. 22 at 2.) It is also

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undisputed that plaintiff’s original complaint commencing this action was docketed on April 10,

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2015. (ECF No. 1.)

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Defendant argues that plaintiff had two years from his parole date to bring this action; thus
his complaint, filed four days after the two-year deadline, is untimely. (ECF No. 16-2.)
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Plaintiff argues that, because the alleged events took place while he was in prison, he

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should receive the benefit of the “mailbox rule.” (ECF No. 22.) Under the mailbox rule, a

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prisoner’s pleading is “deemed filed when he hands it over to prison authorities for mailing to the

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relevant court.” Houston v. Lack, 487 U.S. 266, 276 (1988); Huizar v. Carey, 273 F.3d 1220,

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1222 (9th Cir. 2001). Plaintiff asserts that, under this rule, his complaint should be considered

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filed when he placed it in the U.S. Mail on April 6, 2015. (Id.)

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Actions brought pursuant to 42 U.S.C. § 1983 are governed by the forum state’s statute of

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limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 265 (1985); Jones v.

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Blanas, 393 F.3d 918, 927 (9th Cir. 2004). In California, a two-year statute of limitations applies.

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See Cal. Code Civ. P. § 335.1; Jones, 393 F.3d at 927. The federal court also apples the forum

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state’s law regarding tolling, including equitable tolling when not in conflict with federal law.

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Hardin v. Straub, 490 U.S. 536, 537–39 (1989); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir.

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1999). California provides that when a litigant is incarcerated for less than life, the applicable

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limitations period is tolled for two years on grounds of “disability.” Cal. Code Civ. P. § 352.1(a).

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See Carlson v. Blatt, 87 Cal.App.4th 646, 650 (2001) (imprisonment tolls running of limitations

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period for two years from accrual of cause of action); Fink, 192 F.3d at 914 (same); Ellis v. City

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of San Diego, 176 F.3d 1183, 1189 (9th Cir. 1999) (same). Thus, California inmates who remain

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incarcerated have a total of four years from the accrual of a cause of action to file a complaint.

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However, disability tolling ends when the prisoner is released from physical custody. See

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Boag v. Chief of Police, 669 F.2d 587, 589 (9th Cir. 1982) (construing Oregon tolling provision

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similar to California’s and holding tolling ceased upon prisoner’s release on parole); Choma v.

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Arnold, 2012 WL 1340387, *2 (C.D. Cal. Mar. 19, 2012) (applying Boag to find that action filed

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more than two years after inmate’s release on parole was untimely). Thus, once a California

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inmate has been released on parole, he has two years from his release date to commence a § 1983

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action that arose during the past two years’ confinement.

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Plaintiff does not argue with this proposition. Rather, he contends that his federal

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complaint should be considered filed as of April 6, 2015, when he placed it in the U.S. Mail,

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exactly two years after his release date. Under the Federal Rules, a civil action is commenced by
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filing a complaint with the court. Fed. R. Civ. P. 3. A complaint is not “filed” until it is delivered

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to the clerk of the district court. Fed. R. Civ. P. 5(d)(2). When papers are mailed to the clerk’s

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office, filing is complete when the papers are received by the clerk. Cooper v. City of Ashland,

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871 F.2d 104, 105 (9th Cir. 1989). Ordinarily, therefore, for a complaint to be timely, the clerk

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must receive it before the statute of limitations expires. (Id.)

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There is no reason to apply the prison mailbox rule in this instance. When plaintiff mailed

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his federal complaint, he had been on parole for two years. See, e.g., Benyamini v. O’Brian, 2015

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WL 5734551, n.2 (E.D. Cal. Sept. 28, 2015) (former prisoner “afforded the benefit of the prison

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mailbox rule for those documents he filed while he was still incarcerated”); Brooks v. Williams,

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2013 WL 835973, n.4 (D. Nev. Mar. 6, 2013) (“Petitioner was out of custody and on parole, so

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the prison mailbox rule did not apply to determine the date of filing.”). Plaintiff’s argument that

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he became accustomed to the mailbox rule while litigating cases as a state prisoner is unavailing.

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As plaintiff supplies no other basis for equitable tolling of the limitations period,

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defendant has carried his burden to show that plaintiff’s claim is time-barred.
Accordingly, IT IS HEREBY RECOMMENDED that defendant’s motion for summary
judgment (ECF No. 16) be granted.

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These findings and recommendations are 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 fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 3, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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