McCovey v. Del Norte County et al

Filing 9

ORDER TO SHOW CAUSE (Re: ECF No. 1, 8): Show Cause Response due by 5/30/2014. Signed by Magistrate Judge Laurel Beeler on April 29, 2014. (Attachments: # 1 Certificate/Proof of Service)(ls, COURT STAFF) (Filed on 4/29/2014)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division

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For the Northern District of California

UNITED STATES DISTRICT COURT

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WILLIAM McCOVEY III,

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Plaintiff,

[Re: ECF Nos. 1, 8]

DEL NORTE COUNTY; et al.,
Defendants.
_____________________________________/

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ORDER TO SHOW CAUSE

v.

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No. C 14-1292 LB

INTRODUCTION
William McCovey III, formerly an inmate in the Del Norte County Jail, filed this pro se

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prisoner's civil rights action under 42 U.S.C. § 1983. His complaint, as amended, is now before the

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court for review under 28 U.S.C. § 1915A. This order requires plaintiff to show cause why this

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action should not be dismissed as untimely and because plaintiff already litigated his claim.
STATEMENT

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Plaintiff alleged in his complaint that he was subjected to excessive force by seven officers on an

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unstated date at the Del Norte County Jail. ECF No. 1 at 3. One of those officers was Debra

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Guzman, and the other six officers were listed as John Doe defendants. He alleged, among other

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things, that the officers entered his cell and jumped on his back, pulled him out of his cell by his

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hair, and stomped on his back again. Id. Plaintiff sought money damages.

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ORDER

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Upon noting that several statements in his complaint indicated that the incident complained of

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was the same incident complained of in McCovey v. Guzman, Case No. C 01-2850 SBA, the court

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required plaintiff to file an amendment to the complaint to state the date on which the alleged

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excessive force took place. ECF No. 5.

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Plaintiff then filed an amendment in which he stated that "the exact time of the excessive force is

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on my original complaint filed 2001, heard by your honorable Judge Saundra Armstrong Brown,

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federal court in Oaktown." ECF No. 8 at 2. Plaintiff also wrote that the 2001 action had been

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dismissed due to the court's inability to contact him. Id. at 1. He further wrote in his amendment:

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"My home burned down, and due to my P.T.S.D. condition I was unable [to] manage my own affairs

and 2007 for injuries from the use-of-force incident, is now disabled and dependent on narcotics for

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due to my major spinal condition and medication." Id. He reportedly had major surgeries in 2006

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UNITED STATES DISTRICT COURT

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pain control, and has panic attacks and is anti-social due to the P.T.S.D. Id. at 1-2.

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Plaintiff's statement that the 2001 action was dismissed because the court was unable to contact

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him was incorrect. On February 11, 2005, the court granted summary judgment for defendant

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Deborah Guzman and dismissed the Doe defendants without prejudice. See ECF No. 23 in

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McCovey v. Guzman, No. C 01-2850 SBA. The dispositive order was mailed to plaintiff at the

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address he provided less than ten days before the order was mailed, and the docket sheet does not

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show that the mail was returned undelivered. See ECF Nos. 22 and 23 in McCovey v. Guzman, No.

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C 01-2850 SBA. Plaintiff did not appeal; he apparently did nothing further in the 2001 action until

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2013, when he inquired about the case status and requested appointment of counsel. See ECF Nos.

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24 and 26 in McCovey v. Guzman, No. C 01-2850 SBA. In a letter filed March 13, 2014, plaintiff

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wrote to Judge Armstrong that he intended to file a new civil rights complaint about the same use of

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force incident. See ECF No. 34 in McCovey v. Guzman, No. C 01-2850 SBA. This action was filed

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a couple of days later.

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ANALYSIS
I. REVIEW OF COMPLAINT

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A. Legal Standard

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A federal court must engage in a preliminary screening of any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b).

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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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A party has a limited amount of time to file his complaint and generally has only one chance to
litigate his claims. Plaintiff's complaint appears to have timeliness and res judicata/collateral

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estoppel problems. Both are fatal to the complaint.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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B. Statute of Limitations Concerns

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A "statute of limitations" sets the amount of time within which an action must be brought for a

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wrong. There is not a universal statute of limitations or a single limitations period; instead, the

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length of the limitations period depends on the nature of the cause of action being asserted. Section

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1983 does not contain its own limitations period, so the court looks to the limitations period of the

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forum state's statute of limitations for personal injury torts. See Elliott v. City of Union City, 25 F.3d

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800, 802 (9th Cir. 1994). California's statute of limitations period for personal injury torts is now

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two years, and the statute of limitations period for § 1983 claims is two years. See Maldonado v.

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Harris, 370 F.3d 945, 954 (9th Cir. 2004); Cal. Civ. Proc. Code § 335.1; Elliott, 25 F.3d at 802. It is

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federal law, however, that determines when a cause of action accrues and the statute of limitations

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begins to run in a § 1983 action. Wallace v. Kato, 549 U.S. 384, 388 (2007); Elliott, 25 F.3d at 801-

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02. Under federal law, a claim generally accrues when the plaintiff knows or has reason to know of

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the injury which is the basis of the action. See TwoRivers, 174 F.3d at 991-92; Elliott, 25 F.3d at

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802. The statute of limitations period generally begins when a plaintiff has knowledge of the

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"critical facts" of his injury, which are "that he has been hurt and who has inflicted the injury."

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United States v. Kubrick, 444 U.S. 111, 122 (1979).

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The limitations period may be tolled for certain disabilities that existed when the cause of action

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statute for a maximum of two years, but only for a plaintiff who is in prison "for a term less than for

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life." See Cal. Civ. Proc. Code § 352.1. And a plaintiff's insanity is a disability that may toll the

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limitations period. See Cal. Civ. Proc. Code § 352(a). For purposes of the tolling provision, "the

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term 'insane' has been defined as a condition of mental derangement which renders the sufferer

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incapable of caring for his property or transacting business, or understanding the nature or effects of

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his acts." Hsu v. Mt. Zion Hospital, 259 Cal. App. 2d 562, 571 (Cal. Ct. App. 1968) (citation

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omitted); cf. Feeley v. Southern Pac. Transp. Co., 234 Cal. App. 3d 949, 952 (Cal. Ct. App. 1991)

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(tolling proper for time during which plaintiff was in a coma immediately after the injury that gave

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rise to his cause of action); Snyder v. Boy Scouts of America, 205 Cal. App. 3d 1318, 1324 (Cal. Ct.

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App. 1988) (post-traumatic stress disorder does not count as "insanity" that tolls the limitations

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accrued. See Cal. Penal Code § 357. Incarceration of the plaintiff is a disability that may toll the

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UNITED STATES DISTRICT COURT

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period).

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The limitations period may be subject to equitable tolling. Under California law, equitable

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tolling "'reliev[es] plaintiff from the bar of a limitations statute when, possessing several legal

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remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries

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or damage.'" Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (quoting Addison v.

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California, 21 Cal. 3d 313, 317 (1978)). Thus, in an appropriate case, the statute of limitations

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might be tolled for time spent pursuing a remedy in another forum before filing the claim in federal

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court.

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Although the statute of limitations is an affirmative defense that normally may not be raised by

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the court sua sponte, it may be grounds for sua sponte dismissal of an in forma pauperis complaint

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where the defense is complete and obvious from the face of the pleadings or the court's own records.

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See Franklin v. Murphy, 745 F.2d 1221, 1228-30 (9th Cir. 1984). That is the situation here: the

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defense appears complete and obvious from the face of the complaint and amendment thereto. The

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amendment to the complaint states that the current action is for the same event that was the subject

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of plaintiff's action filed in 2001 and that the "exact date" of the excessive force incident is stated in

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the complaint in the 2001 action. See ECF No. 8 at 2. The complaint in the 2001 action stated that

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the excessive force occurred "[t]owards the end of July 2000." See Docket # 1 at 3 in McCovey v.

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Guzman, No. C 01-2850 SBA. This action was filed more than thirteen years after the use-of-force

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incident, and more than twelve years after the 2001 action complaining of that incident was filed.

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Plaintiff must file a response to this order, showing cause why the action should not be dismissed

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as time-barred. Of course, plaintiff 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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C. Res Judicata and/or Collateral Estoppel Concerns

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The court has the authority to examine the preclusive effect of a prior judgment sua sponte. See

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Hawkins v. Risley, 984 F.2d 321, 324 (9th Cir. 1993); McClain v. Apodaca, 793 F.2d 1031, 1032-33

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(9th Cir. 1986).

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The related doctrines of res judicata and collateral estoppel limit litigants' ability to relitigate
matters. Under the doctrine of res judicata (also known as the claim preclusion doctrine), "a final

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For the Northern District of California

UNITED STATES DISTRICT COURT

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judgment on the merits of an action precludes the parties or their privies from relitigating issues that

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were or could have been raised in that action. . . . Under collateral estoppel [also known as the issue

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preclusion doctrine], once a court has decided an issue of fact or law necessary to its judgment, that

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decision may preclude relitigation of the issue in a suit on a different cause of action involving a

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party to the first case." Allen v. McCurry, 449 U.S. 90, 94 (1980).

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The action filed by plaintiff in 2001 looks very similar, if not identical, to this action. The court

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therefore will require plaintiff to provide sufficient information for the court to analyze whether the

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present claims against the defendants are barred under the doctrines of res judicata and collateral

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estoppel. Plaintiff is ordered to show cause why the judgment against him in McCovey v. Guzman,

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No. C 01-2850 SBA, does not bar this action. For example, he may demonstrate that the factual

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basis for the claim in that action is not the same as for the claim in this action, or that the defendants

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did not prevail on the merits. He also may state any other reason he has why the judgment in the

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earlier action should not bar this action.

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CONCLUSION
The complaint as amended appears to be time-barred and barred by the doctrines of res judicata

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and collateral estoppel. Plaintiff is hereby ordered to show cause why this action should not be

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dismissed as barred by the statute of limitations and/or the doctrines of res judicata and collateral

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estoppel. Plaintiff must file a written response to this order to show cause no later than May 30,

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2014. Failure to file the response by the deadline will result in the dismissal of this action.

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IT IS SO ORDERED.
Dated: April 29, 2014
_______________________________
LAUREL BEELER
United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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