Walker v. Pacific Maritime Association et al

Filing 109

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT by Magistrate Judge Bernard Zimmerman granting 100 Motion for Summary Judgment (bzsec, COURT STAFF) (Filed on 4/20/2009) (Additional attachment(s) added on 4/23/2009: # 1 Proof of Service) (bzsec, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) Plaintiff(s), ) ) ) v. ) PACIFIC MARITIME ASSOC., et ) ) al., ) ) Defendant(s). ) JAMES TROY WALKER, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

No. C07-3100 BZ ORDERING GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

On June 13, 2007, plaintiff James Troy Walker ("plaintiff"), acting pro se, filed a complaint against C&H Sugar Co., Inc. ("defendant"), and other defendants alleging employment discrimination under Title VII of the Civil Rights Act. After I granted various motions to dismiss based, in

part, on the untimeliness of plaintiff's claims, I permitted plaintiff to amend his complaint against defendant C&H to invoke the doctrine of equitable tolling on the grounds that he "lost legal competency for several years." (See Doc. No. 45.) Defendant has moved for summary judgment on the ground that plaintiff's claim is barred by the applicable three year 1

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statute of limitations under 46 U.S.C. § 763(a), recently recodified at 46 U.S.C. § 30106.1 More specifically, defendant

argues that no exceptional circumstances exist that would support equitable tolling of the applicable three-year statute of limitations. Plaintiff's opposition to defendant's motion was due on April 1, 2009. As required by Rand v. Rowland, 154 F.3d 952,

963 (9th Cir. 1998), plaintiff has been cautioned about the importance of submitting evidence in opposition to a motion for summary judgment to show that there is a genuine issue of material fact for trial, and was advised that if summary judgment is granted, the case would be dismissed and there would be no trial. (See Doc. No. 89.) No opposition was

filed; however, as plaintiff is pro se, the Court has reviewed the record in deciding defendant's motion.2 Viewing the record in the light most favorable to plaintiff and drawing all reasonable inferences therefrom, the factual background to this case is as follows: On May 1, 2002, plaintiff, as an employee of former defendant Marine Terminals Corporation ("MTC"), was scraping raw sugar off of the hull of a ship at the C&H Sugar refinery. Plaintiff was injured when a backhoe, operated by another employee of MTC, malfunctioned and collided with a piece of

All parties have consented to my jurisdiction for all proceedings including entry of final judgment, pursuant to 28 U.S.C. § 636(c). For the purposes of this review, I have assumed that the various documents in the file were properly before the Court. See Orr v. Bank of Am., 285 F.3d 764 (9th Cir. 2002). 2
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metal, causing the piece of metal to strike plaintiff in the face.3 The backhoe was owned by defendant C&H.

The incident resulted in substantial and chronic brain damage to plaintiff, who has continued to suffer from physical and mental symptoms such as severe headaches, dizziness, ataxia, and memory problems. Plaintiff testified in his

deposition that he was never declared legally incompetent by any court and that none of his doctors ever recommended that he be confined to a mental institution. Two weeks after plaintiff's accident, he retained an attorney, Cory Birnberg ("Birnberg"), to represent him in a claim for Longshoreman and Harbor Workers Compensation Act benefits. Plaintiff also filed a union grievance regarding

the backhoe operator and personally attended the grievance hearing. In November 2004, plaintiff became dissatisfied with

Birnberg's legal representation, and in early December 2004, plaintiff filed a complaint with the State Bar of California against Birnberg for professional misconduct.4 Subsequently,

plaintiff retained Phil Weltin ("Weltin"), an attorney plaintiff believed to be an expert in third party negligence actions. Plaintiff testified that he mistakenly believed that both Birnberg (while he was acting as plaintiff's attorney) and Weltin had been pursuing a civil third party action against
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The nature of the malfunction is unknown.

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The complaint against Birnberg was closed in April 2005 after the State Bar determined that there was insufficient evidence to establish that professional misconduct was committed. 3

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defendant on his behalf.5

(Decl. of Andrew J. Sommer Exh. A, Once plaintiff realized

Walker Dep., 111:3-21, 112:10-23.)

that his third-party action was not being pursued, he attempted to find another attorney to represent him. 112:15-23.) (Id. at

Failing to find an attorney, plaintiff filed this

complaint pro se on June 13, 2007. Plaintiff's negligence claim against defendant is governed by the uniform three-year statute of limitations, which applies to suits for recovery of damages for personal injury or death, arising out of a maritime tort. 46 U.S.C. §

30106; Usher v. M/V Ocean Wave, 27 F.3d 370 (9th Cir. 1994). As set forth in my earlier ruling (Doc. No. 45), the Supreme Court has held that there is a rebuttable presumption that all federal statutes of limitations contain an implied equitable tolling provision. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96-97 (1990); see also Walck v. Discavage, 741 F.Supp. 88, 90 (E.D. Pa. 1990) (stating it is a "general principle" that equitable tolling is "`read into every federal statute of limitation.'") (quoting Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946)). Equitable tolling of a limitations period is appropriate in three circumstances: (1) where the plaintiff has actively pursued his judicial remedies by filing a timely but defective

In a letter from Weltin to plaintiff dated December 28, 2006, Weltin informed plaintiff that he did not believe that plaintiff had a third-party claim. The letter suggests that plaintiff and Weltin had previously discussed other possible legal actions for plaintiff to pursue, but that plaintiff was not satisfied with the answers that he had received from Weltin. 4

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pleading (Burnett v. New York Cent. R. Co., 380 U.S. 424, 430 (1965)); (2) where extraordinary circumstances outside the plaintiff's control made it impossible for the plaintiff to timely assert his claim (Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999); or (3) where the plaintiff, by exercising reasonable diligence, could not have discovered essential information bearing on his claim (Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452 (7th Cir. 1990)); see also Logwood v. Apollo Marine Specialists, Inc., 772 F.Supp. 925, 927 (E.D. La. 1999) ("[e]quitable tolling applies principally when the plaintiff was actively misled about the cause of action by the defendant, was prevented in some extraordinary way from asserting his or her rights, or filed the same claim in the wrong forum.). Mental incapacity and the effect it has upon the ability to file a lawsuit can be an "extraordinary circumstance" that supports the application of the doctrine of equitable tolling. Robles v. Leppke, No. 06-0219, 2007 WL 2462058 * 1 (E.D. Cal. Aug. 28, 2007); see also United States v. Brockamp, 519 U.S. 347, 348 (1997) ("[mental disability], we assume, would permit a court to toll the statutory limitations period"); Laws v. Lamarque, 351 F.3d 919 (9th Cir. 2003) (mental incompetence may warrant equitable tolling for the period the prisoner was incompetent if he can show that the incompetency in fact caused the filing delay). In the Ninth Circuit, "[e]quitable tolling is unavailable in most cases. . . .", Miles v. Prunty, 187 F.3d 1104, 1107

(9th Cir. 1999) (citing Calderon v. United States Dist. Court 5

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(Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Court, (Kelly), 163 F.3d 530 (9th Cir. 1998)), and has been found appropriate "when extraordinary circumstances beyond the plaintiff's control [make] it impossible to file a claim on time." Stoll, 165 F.3d at 1242 (citing Alvarez-Machain v.

United States, 107 F.3d 696, 700 (9th Cir. 1996))6; see also Irwin, 498 U.S. at 95-96 ("Federal courts have typically extended equitable relief only sparingly.") (footnotes omitted). Even taking the evidence offered in a light most favorable to plaintiff, there is insufficient evidence that would create a genuine issue of material fact of "extraordinary circumstances" that made it "impossible" for plaintiff to file within the statutory period.7

The limited application of the doctrine of equitable tolling in the Ninth Circuit is consistent with other circuit courts. See, e.g., Biester v. Midwest Health Serv., Inc., 77 F.3d 1264, 1268 (10th Cir. 1996) (declining to toll 90 day EEOC filing period for mental incapacity due to "major depression" where no "exceptional circumstances" were alleged and "the evidence demonstrate[d] that, in spite of his mental condition, [plaintiff] `was capable of pursuing his own claim,'" inasmuch as he "wrote to the EEOC . . . to request a right to sue notice"); Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996) ("Mental illness tolls a statute of limitations only if the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them. . . . Most mental illnesses today are treatable by drugs that restore the patient to at least a reasonable approximation of normal mentation and behavior.") (emphasis in original). Plaintiff does not present any of the other situations set forth in Irwin that would permit equitable tolling of the applicable statute in this case: he neither filed a timely though defective pleading within the applicable statutory period, nor is there any evidence that he was he tricked by defendant into allowing the deadline to pass. 6
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There is scant evidence that during the period from May 1, 2002, the date of plaintiff's injury, to May 1, 2005, the last day within the applicable statutory period, plaintiff could not have filed a timely complaint against defendant or that plaintiff was mentally (or physically) incapable of filing a complaint against defendant.8 opposite is true. If anything, the

The record demonstrates that during the

three year period at issue, plaintiff was fully capable of managing his legal affairs: after plaintiff was injured, he obtained legal counsel to pursue his worker's compensation claim; he pursued a union grievance and attended the grievance hearing; he filed a complaint with the State Bar against Birnberg; and he obtained new counsel upon becoming dissatisfied with Birnberg's legal representation, counsel whom he believed would handle any third-party lawsuits that he potentially could have brought. Plaintiff also filed a charge

of discrimination in 2007 with the EEOC against former The record contains letters from various healthcare providers that state that plaintiff has been suffering from chronic brain injuries. These letters, however, do not establish that plaintiff's medical condition prevented him from sufficiently articulating his claims or that plaintiff was too incompetent to tend to either his daily or legal affairs. On September 17, 2008, a psychologist at the Department of Psychiatry at Kaiser Hospital in Vallejo, California, who had been treating plaintiff for several years, wrote a letter to the Court in support of plaintiff's motion for appointment of counsel stating that plaintiff suffered from "significant chronic head pain, dizziness, and other symptoms" that impact his ability to concentrate and his ability "to deal with complex matters." Based on these mental and physical issues, the psychiatrist concluded that plaintiff was "incapable of representing himself." This letter, however, was written well after the applicable statutory period had expired and presents no explanation for plaintiff's failure to pursue his claim within the prescribed limitations period. See Grant v. McDonnell Douglas Corp., 163 F.3d 1136, 1137 (9th Cir. 1998). 7
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defendant Pacific Maritime Association ("PMA") and requested a right to sue letter, and on June 13, 2007, plaintiff, proceeding in pro se, filed a Title VII discrimination claim against PMA, MTC, his union, and defendant, which is the origin of the current dispute. Plaintiff has failed to offer any evidence or allege specific facts, and the Court has found none, that would create a "genuine issue of material fact" that his physical and emotional injuries were "exceptional circumstances" that prevented him from proceeding with his claims, especially in light of all of the contrary evidence listed above. Nor do

plaintiff's mental and emotional injuries rise to the level of the mental or physical incapacities contemplated by courts that have tolled limitations periods as a result of such incapacities. See, e.g., Stoll, 165 F.3d at 1242 (equitable

tolling was proper where "overwhelming evidence" demonstrated that complainant was completely disabled during the limitations period and incapable of communicating with her lawyer); Cf., Langner v. Simpson, 533 N.W.2d 511, 523 (Iowa 1995) ("The statute of limitations is not tolled if the person has a mental illness not rising to the level of a disability such as to prevent the person from filing a lawsuit. In short, the disability must be such that the plaintiff is not capable of understanding the plaintiff's rights."); Lopez v. Citibank, N.A., 808 F.2d 905, 906-07 (1st Cir. 1987). Plaintiff's

ability to consult with attorneys and file various other claims, such as with his union and with the State Bar, during his alleged period of legal incompetency undermines his claims 8

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of legal incompetency. I find no need for argument and vacate the hearing scheduled for April 29, 2009. It is ORDERED that defendant's

motion for summary judgment is GRANTED. Dated: April 20, 2009 Bernard Zimmerman United States Magistrate Judge
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