Smith v. Pelican Bay State Prison

Filing 3

ORDER TO SHOW CAUSE Why Action Should Not Be Dismissed As Time-Barred. Show Cause Response due by 6/13/2014. Signed by Judge Edward M. Chen on 5/16/2014. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 5/16/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KENNETH ARDELL SMITH,

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United States District Court
For the Northern District of California

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No. C-14-2162 EMC (pr)

Plaintiff,

ORDER TO SHOW CAUSE WHY
ACTION SHOULD NOT BE DISMISSED
AS TIME-BARRED

v.
PELICAN BAY STATE PRISON;
et al.,
Defendants.
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I.

INTRODUCTION

Plaintiff, formerly an inmate of the State of California and now living in Sacramento, filed

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this pro se prisoner’s civil rights action under 42 U.S.C. § 1983. His complaint alleges claims based

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on events and omissions that occurred in 1995-1997 at Pelican Bay State Prison. The Court will

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require Plaintiff to address the apparent untimeliness of his claims before considering whether the

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action should proceed any further.

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II.

DISCUSSION

Although Plaintiff 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 Plaintiff has applied to proceed in forma pauperis. Under

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the latter provision, notwithstanding any filing fee or any portion thereof that may have been paid,

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“the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . .

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is frivolous or malicious, [or] fails to state a claim upon which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police

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Dep’t, 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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Section 1983 does not contain its own limitations period, so the court looks to the limitations

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period of the forum state’s statute of limitations for personal injury torts. See Elliott v. City of Union

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City, 25 F.3d 800, 802 (9th Cir. 1994). California’s statute of limitations period for personal injury

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

United States District Court
For the Northern District of California

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

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F.3d at 802. It is federal law, however, that determines when a cause of action accrues and the

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statute of limitations begins to run in a § 1983 action. Wallace v. Kato, 549 U.S. 384, 388 (2007);

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Elliott, 25 F.3d at 801-02. Under federal law, a claim generally accrues when the plaintiff knows or

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has reason to know of the injury which is the basis of the action. See Elliott, 25 F.3d at 802. The

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statute of limitations period generally begins when a plaintiff has knowledge of the “critical facts” of

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his injury, which are “that he has been hurt and who has inflicted the injury.” United States v.

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Kubrick, 444 U.S. 111, 122 (1979).

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Incarceration of the plaintiff is a disability that may toll the statute for a maximum of two

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years, but only for a plaintiff who is in prison “for a term less than for life” and is under the

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disability at the time the cause of action accrues. See Cal. Civ. Proc. Code § 352.1.

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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
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by a 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 because this action was filed

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more than seventeen years after the acts and omissions alleged in the complaint occurred.

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

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dismissed as time-barred. Of course, Plaintiff is not limited to arguing only equitable tolling – he

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may submit any argument he has to show that the statute of limitations does not bar this action.

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United States District Court
For the Northern District of California

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III.

CONCLUSION

The complaint appears to be time-barred. Plaintiff must file a written response no later than

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June 13, 2014 showing cause why this action should not be dismissed as barred by the statute of

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

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IT IS SO ORDERED.

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Dated: May 16, 2014

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_________________________
EDWARD M. CHEN
United States District Judge

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