White v. Board of Prison Terms

Filing 10

ORDER TO SHOW CAUSE RE. STATUTE OF LIMITATIONS PROBLEM 6 8 (Illston, Susan) (Filed on 4/18/2013)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 LARRY LIONEL WHITE, United States District Court For the Northern District of California 10 11 12 No. C 13-949 SI (pr) Plaintiff, ORDER TO SHOW CAUSE RE. STATUTE OF LIMITATIONS PROBLEM v. BOARD OF PRISON TERMS, 13 Defendant. / 14 15 INTRODUCTION 16 Larry Lionel White, an inmate currently incarcerated at the California State Prison in 17 Lancaster, filed this pro se prisoner's civil rights action under 42 U.S.C. § 1983. He filed a 18 complaint, a first amended complaint, a second amended complaint and a third amended 19 complaint within about six weeks. His third amended complaint supersedes the earlier pleadings 20 and is the operative pleading. The third amended complaint complains of events and omissions 21 that occurred in 1988-1989. Specifically, White alleges that, even though he had never served 22 a prison term in California or been put on parole in California, he was unlawfully taken into 23 custody and sent to prison from June 24, 1988 through June 21, 1989 for a one-year parole 24 violation in California. See Docket # 9, p. 3. The court will require White to address the 25 apparent untimeliness of his claim before considering whether the action should proceed any 26 further. 27 28 DISCUSSION 1 2 A federal court must engage in a preliminary screening of any case in which a prisoner 3 seeks redress from a governmental entity or officer or employee of a governmental entity. See 4 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss 5 any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, 6 or seek monetary relief from a defendant who is immune from such relief. See id. at § 7 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police 8 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that 10 United States District Court For the Northern District of California 9 a right secured by the Constitution or laws of the United States was violated, and (2) that the 11 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 12 U.S. 42, 48 (1988). 13 Section 1983 does not contain its own limitations period, so the court looks to the 14 limitations period of the forum state's statute of limitations for personal injury torts. See Elliott 15 v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). California's statute of limitations period 16 for personal injury torts is now two years, and the statute of limitations period for § 1983 claims 17 is two years. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Cal. Civ. Proc. Code 18 § 335.1; Elliott, 25 F.3d at 802. It is federal law, however, that determines when a cause of 19 action accrues and the statute of limitations begins to run in a § 1983 action. Wallace v. Kato, 20 549 U.S. 384, 388 (2007); Elliott, 25 F.3d at 801-02. Under federal law, a claim generally 21 accrues when the plaintiff knows or has reason to know of the injury which is the basis of the 22 action. See TwoRivers, 174 F.3d at 991-92; Elliott, 25 F.3d at 802. The statute of limitations 23 period generally begins when a plaintiff has knowledge of the "critical facts" of his injury, which 24 are "that he has been hurt and who has inflicted the injury." United States v. Kubrick, 444 U.S. 25 111, 122 (1979). 26 Incarceration of the plaintiff is a disability that may toll the statute for a maximum of two 27 years, but only for a plaintiff who is in prison "for a term less than for life" and is under the 28 disability at the time the cause of action accrues. See Cal. Civ. Proc. Code § 352.1. 2 1 The limitations period may be subject to equitable tolling. Under California law, 2 equitable tolling "'reliev[es] plaintiff from the bar of a limitations statute when, possessing 3 several legal remedies he, reasonably and in good faith, pursues one designed to lessen the extent 4 of his injuries or damage.'" Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) 5 (quoting Addison v. California, 21 Cal. 3d 313, 317 (1978)). Thus, in an appropriate case, the 6 statute of limitations might be tolled for time spent pursuing a remedy in another forum before 7 filing the claim in federal court. Although the statute of limitations is an affirmative defense that normally may not be 9 raised by the court sua sponte, it may be grounds for sua sponte dismissal of an in forma 10 United States District Court For the Northern District of California 8 pauperis complaint where the defense is complete and obvious from the face of the pleadings 11 or the court's own records. See Franklin v. Murphy, 745 F.2d 1221, 1228-30 (9th Cir. 1984). 12 That is the situation here: the defense appears complete and obvious from the face of the third 13 amended complaint because this action was filed more than twenty-three years after the acts and 14 omissions alleged in the third amended complaint occurred. White must file a response to this 15 order, showing cause why the action should not be dismissed as time-barred. Of course, White 16 is not limited to arguing only equitable tolling – he may submit any argument he has to show that 17 the statute of limitations does not bar this action. 18 White has requested that counsel be appointed to assist him in this action. A district court 19 has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an indigent civil 20 litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 21 1986). This requires an evaluation of both the likelihood of success on the merits and the ability 22 of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 23 involved. See id. Neither of these factors is dispositive and both must be viewed together before 24 deciding on a request for counsel under § 1915(e)(1). Here, exceptional circumstances requiring 25 the appointment of counsel are not evident. The request for appointment of counsel is DENIED. 26 (Docket # 6, # 8.) 27 28 3 CONCLUSION 1 2 The third amended complaint appears to be time-barred. White must file a written 3 response no later than May 31, 2013 showing cause why this action should not be dismissed as 4 barred by the statute of limitations. Failure to file the response by the deadline will result in the 5 dismissal of this action. 6 7 IT IS SO ORDERED. Dated: April 18, 2013 _______________________ SUSAN ILLSTON United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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