Cottonham v. City and County of San Francisco et al

Filing 25

ORDER of Dismissal. Signed by Judge Edward M. Chen on 1/22/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 1/22/2013)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

MARK A. COTTONHAM,

9

11
For the Northern District of California

United States District Court

10

No. C-11-4305 EMC (pr)

Plaintiff,
v.

ORDER OF DISMISSAL

CITY AND COUNTY OF SAN
FRANCISCO, et al.,

12
13

Defendants.
___________________________________/

14
15

I.

INTRODUCTION

16

This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state

17

prisoner. Defendants move to dismiss the action on grounds that it is barred by the statute of

18

limitations. (Docket No. 19.) For the reasons stated herein, Defendants’ motion is GRANTED, and

19

the action is DISMISSED.

20
21

II.

BACKGROUND

Plaintiff alleges that on July 6, 2007, Defendants, San Francisco County police and sheriff’s

22

officers, arrested him in violation of his constitutional rights. In 2008, Plaintiff filed suit in small

23

claims court against defendants. That action was dismissed without prejudice on November 19,

24

2008 when plaintiff failed to appear at a hearing. (Mot. to Dismiss (“MTD”), Carling Decl., Ex. B.)

25

In 2011, Plaintiff filed this § 1983 action against Defendants regarding the July 6, 2007 incident.

26
27
28

III.

DISCUSSION

Defendants move to dismiss this federal action on grounds that it is barred by the statute of
limitations. Section 1983 takes its limitations period from the forum state’s statute of limitations for

1

personal injury torts, see Wilson v. Garcia, 471 U.S. 261, 276 (1985), which, in California, is two

2

years, see Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). This two-year statute of

3

limitations period is tolled for two years if the plaintiff is a prisoner serving a term of less than life,

4

thus giving such prisoners effectively four years to file a federal suit. See Cal. Civ. Proc. Code §

5

352.1(a). Plaintiff alleges that he was incarcerated on and off from 2007 to 2008, and spent two and

6

a half unincarcerated years in Thailand before being arrested there in 2011 and deported to the

7

United States where he spent a further nine months in jail. (Opp. to MTD at 2–4; Reply at 2.)

8

A.

9

Tolling for Time of Imprisonment
Plaintiff’s statute of limitations period started on July 6, 2007, the day of the incident and

therefore the day he knew or had reason to know of his claim. Giving Plaintiff four years of credit

11
For the Northern District of California

United States District Court

10

for imprisonment, he had until July 7, 2011 to file a timely § 1983 action. However, this action was

12

not filed until August 31, 2011, which is after the July 7, 2011 deadline. Accordingly, absent

13

equitable tolling or equitable estoppel, the two doctrines that may apply to extend the limitations

14

period on equitable grounds, the instant action is barred by the statute of limitations and therefore

15

must be dismissed.

16

B.

17

Equitable Tolling
Where the danger of prejudice to the defendant is absent, and the interests of justice so

18

require, equitable tolling of the limitations period may be appropriate. Azer v. Connell, 306 F.3d

19

930, 936 (9th Cir. 2002). Because federal courts borrow California’s statute of limitations, they also

20

apply California’s equitable tolling rules. Id. Under California law, equitable tolling “‘reliev[es]

21

plaintiff from the bar of a limitations statute when, possessing several legal remedies he, reasonably

22

and in good faith, pursues one designed to lessen the extent of his injuries or damage.’” Cervantes

23

v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (quoting Addison v. California, 21 Cal. 3d

24

313, 317 (1978)). Thus, in an appropriate case, the statute of limitations might be tolled for time

25

spent pursuing a remedy in another forum before filing the claim in federal court.

26

Equitable tolling is appropriate in a later suit when an earlier suit was filed and where the

27

record shows: “‘(1) timely notice to the defendant in filing the first claim; (2) lack of prejudice to

28

the defendant in gathering evidence to defend against the second claim; and, (3) good faith and

2

1

reasonable conduct by the plaintiff in filing the second claim.’” Daviton v. Columbia/ HCA

2

Healthcare Corp., 241 F.3d 1131, 1137–38 (9th Cir. 2001) (en banc) (quoting Collier v. City of

3

Pasadena, 142 Cal. App. 3d 917, 924 (1983)).

met the good faith and reasonable conduct requirement. First, the record is bare of any justification

6

for abandoning his state action. He alleges that Defendants prevented him from pursuing his claims

7

in state court. (Opp. to MTD at 1.) According to Plaintiff, Defendants continually arrested and

8

detained him, and got him addicted to morphine. (Id. at 2–4.) However, Plaintiff provides no

9

explanation for his failure to appear at the November 19, 2008 hearing. He admits that Defendants

10

released him on September 19, 2008, but fails to explain why he failed to appear at his hearing two

11
For the Northern District of California

Plaintiff has not shown that he is entitled to equitable tolling. More specifically, he has not

5

United States District Court

4

months later. Second, Plaintiff admits that some time after his September 2008 release, he left for

12

Thailand, where he remained for two and a half unincarcerated years. Such conduct does not show

13

good faith or reasonable conduct. Accordingly, the Court declines to apply equitable tolling.

14

C.

Equitable Estoppel

15

“Equitable estoppel . . . focuses primarily on actions taken by the defendant to prevent a

16

plaintiff from filing suit, sometimes referred to as ‘fraudulent concealment.’” Zolotarev v. San

17

Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008) (cited in Johnson v. Henderson, 314 F.3d 409, 414

18

(9th Cir. 2002)). Apart from Plaintiff’s conclusory allegations, there is nothing in the record to

19

indicate that Defendants prevented Plaintiff from filing suit. He was able to file a timely state court

20

action which was dismissed owing to his unexplained failure to appear at a hearing. Though he was

21

repeatedly incarcerated, Plaintiff has not shown that such arrests were without justification or were

22

pretexts for preventing him from pursuing his claims. Accordingly, the Court declines to apply

23

equitable estoppel.

24

///

25

///

26

///

27

///

28

///

3

1
2

IV.

CONCLUSION

Based on the foregoing, Defendants’ motion to dismiss (Docket No. 19) is GRANTED, and

3

the action is hereby DISMISSED. The Clerk shall enter judgment in favor of Defendants, terminate

4

Docket No. 19, and close the file.

5
6

IT IS SO ORDERED.

7
8

Dated: January 22, 2013

9

_________________________
EDWARD M. CHEN
United States District Judge

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4