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)

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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

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