Garver v. Mayes et al

Filing 7

ORDER DISMISSING CASE. Signed by Judge Jacqueline Scott Corley on 6/16/14. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 6/16/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RICHARD GARY GARVER,

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Plaintiff,

Northern District of California

United States District Court

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Case No.: C 14-1445 JSC (PR)
ORDER OF DISMISSAL

v.

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T. MAYES, et al.,

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Defendants.

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INTRODUCTION

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Plaintiff, a California prisoner, filed this pro se civil rights complaint under 42 U.S.C. §

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1983 against officials at Pelican Bay State Prison. 1 His application to proceed in forma

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pauperis is granted in a separate order. For the reasons explained below, the complaint is

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dismissed.
STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or

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any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim

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Plaintiff has consented to the jurisdiction of a United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). (Dkt. No. 5.)

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upon which relief may be granted,” or “seeks monetary relief from a defendant who is

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immune from such relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed.

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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DISCUSSION

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Plaintiff claims that after returning to prison from the hospital, where he was treated for

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a heart attack, defendants required him to walk in restraints and he fell over and broke his

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arm. These events took place in 2007. Plaintiff brought these claims in a prior lawsuit in

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2008, which was dismissed without prejudice because he had not exhausted his administrative

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remedies. See Garver v. Mayes, et al., No. C 08-1834 WHA (PR) (Dkt. No. 13).

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Plaintiff’s claims are untimely because they arise from events that occurred more than

Northern District of California

United States District Court

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seven years ago. The statute of limitations for a claim under 42 U.S.C. § 1983 is two years.

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SeeJackson v. Barnes, 749 F.3d 755, 761 (9th Cir. 2014). Plaintiff is entitled to a maximum

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of two years of tolling based upon his imprisonment. See Cal. Code of Civ. Pro. § 352.1(a);

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see also Martinez v. Gomez, 137 F.3d 1124, 1125-26 (9th Cir. 1998) (applying California

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Code of Civil Procedure to determine tolling of section 1983 claim due to imprisonment).

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Thus, claims that accrued more than four years before they were filed are untimely. A claim

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accrues when the plaintiff knows or has reason to know of the injury which is the basis of the

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action. Two Rivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 1999). Here, plaintiff knew of

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his injury --- the broken arm -- when it occurred in 2007. Thus, his claims accrued more than

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four years ago and are untimely. The claims are untimely even if the statute is also tolled for

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the 17 months during which his first action, No. 08-1834 WHA, was pending.

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Claims may be dismissed sua sponte under 28 U.S.C. § 1915A where, as here, the

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statute of limitations defense is complete and obvious from the face of the pleadings. See

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Franklin v. Murphy, 745 F.2d 1221, 1228-30 (9th Cir. 1984). Accordingly, Plaintiff’s claims

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will be dismissed with prejudice.

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CONCLUSION

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Because Plaintiff’s claims are barred by the statute of limitations, the complaint is

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DISMISSED with prejudice.
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The Clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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Dated: June 16, 2014
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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Northern District of California

United States District Court

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