Smith v. Pelican Bay State Prison
Filing
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ORDER of Dismissal with Leave to Amend. Signed by Judge Edward M. Chen on 7/10/2012. (Attachments: # 1 Prisoner Civil Rights Complaint Form, # 2 Certificate of Service). (emcsec, COURT STAFF) (Filed on 7/10/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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In Re
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KENNETH ARDELL SMITH,
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For the Northern District of California
United States District Court
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No. C-12-1353 EMC (pr)
Plaintiff.
ORDER OF DISMISSAL WITH LEAVE
TO AMEND
___________________________________/
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Kenneth Ardell Smith, formerly a prisoner of the State of California, commenced this action
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by filing a one page document labeled a "complaint," which concerned events that occurred at
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Pelican Bay State Prison.
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Although Smith has been incarcerated in the past, he apparently was not incarcerated at the
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time of filing of this action. This action therefore is not governed by 28 U.S.C. § 1915A, which
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applies only to actions filed by prisoners. This action is, however, subject to the non-prisoner
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provisions of 28 U.S.C. § 1915 because Smith has applied to proceed in forma pauperis. Under the
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latter provision, notwithstanding any filing fee or any portion thereof that may have been paid, "the
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court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . is
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frivolous or malicious, [or] fails to state a claim upon which relief may be granted." 28 U.S.C. §
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1915(e)(2)(B). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't,
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901 F.2d 696, 699 (9th Cir. 1990).
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right
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secured by the Constitution or laws of the United States was violated and (2) that the violation was
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committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48
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(1988).
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The Court cannot understand enough of the allegations in Smith's complaint to determine
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that any of his constitutional rights may have been violated and that he has any claim for relief under
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42 U.S.C. § 1983. Some of his allegations appear to be that he was verbally harassed by
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unidentified persons at Pelican Bay. Allegations of verbal harassment and abuse fail to state a claim
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cognizable under 42 U.S.C. § 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997),
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overruled in part on other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). The
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complaint is dismissed for failure to state a claim upon which relief may be granted.
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Leave to amend is granted so that Smith may attempt to allege a cognizable § 1983 claim in
an amended complaint, if he has facts indicating that he was subjected to anything more than
undesired and non-actionable verbal harassment. For each instance of a constitutional violation,
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For the Northern District of California
United States District Court
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Smith should name each person who violated his constitutional right(s), describe what each person
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did to violate his right(s), state at which institution the violation occurred, and state the date on
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which the violation occurred. The amended complaint must be filed no later than August 10, 2012.
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The amended complaint must include the caption and civil case number used in this Order and the
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words AMENDED COMPLAINT on the first page. Failure to timely file the amended complaint
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will result in the dismissal of this action.
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The Clerk will mail to Smith a copy of the Court's prisoner civil rights complaint form.
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Smith may, but is not required to, use this form to file an amended complaint. The form often is
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helpful to pro se litigants because it guides a prisoner (or someone complaining about prison events)
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to provide the necessary information.
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An additional problem with the complaint is that – assuming cognizable claims can be pled –
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some of those claims would appear to be time-barred, as Smith has alleged that some of the events
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and omissions occurred in 1994-1997. Section 1983 does not contain its own limitations period, so
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the Court looks to the limitations period of the forum state's statute of limitations for personal injury
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torts. See Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). California's statute of
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limitations period for personal injury torts is two years, and the statute of limitations period for
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§ 1983 claims is two years. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Cal. Civ.
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Proc. Code § 335.1; Elliott, 25 F.3d at 802. A claim accrues when the plaintiff knows or has reason
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(9th Cir. 1999); Elliott, 25 F.3d at 802. It is federal law, however, that determines when a cause of
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action accrues and the statute of limitations begins to run in a § 1983 action. Wallace v. Kato, 549
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U.S. 384, 388 (2007); Elliott, 25 F.3d at 801-02. Under federal law, a claim generally accrues when
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the plaintiff knows or has reason to know of the injury which is the basis of the action. See
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TwoRivers, 174 F.3d at 991-92; Elliott, 25 F.3d at 802. Although the statute of limitations is an
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affirmative defense that normally may not be raised by the Court sua sponte, it may be grounds for
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sua sponte dismissal of an in forma pauperis complaint where the defense is complete and obvious
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from the face of the pleadings or the Court's own records. See Franklin v. Murphy, 745 F.2d 1221,
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1228-30 (9th Cir. 1984). That is the situation here: the defense appears complete and obvious from
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For the Northern District of California
to know of the injury which is the basis of the action. See TwoRivers v. Lewis, 174 F.3d 987, 991-92
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United States District Court
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the face of the complaint because this action was filed about 14-18 years after the acts and omissions
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alleged in the complaint occurred. Incarceration of the Plaintiff is a disability that may toll the
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statute for a maximum of two years. See Cal. Civ. Proc. Code § 352.1. The limitations period may
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be subject to equitable tolling. Under California law, equitable tolling "'reliev[es] plaintiff from the
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bar of a limitations statute when, possessing several legal remedies he, reasonably and in good faith,
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pursues one designed to lessen the extent of his injuries or damage.'" Cervantes v. City of San
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Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (quoting Addison v. California, 21 Cal. 3d 313, 317
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(1978)). Thus, in an appropriate case, the statute of limitations might be tolled for time spent
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pursuing a remedy in another forum before filing the claim in federal court. Smith must explain –
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either in his amended complaint or in a separate response – why the action should not be dismissed
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as time-barred. Of course, Smith is not limited to arguing only equitable tolling – he may submit
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any argument he has to show that the statute of limitations does not bar this action.
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Smith's in forma pauperis application is GRANTED. (Docket # 2.)
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IT IS SO ORDERED.
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Dated: July 10, 2012
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_________________________
EDWARD M. CHEN
United States District Judge
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