Gibbs v. Farley et al

Filing 27

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS by Judge Thelton E. Henderson granting 13 Motion to Dismiss. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 1/20/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KENNETH GIBBS, Case No. 16-cv-0731-TEH Plaintiff, 8 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS v. 9 10 FARLEY, et. al., Docket No. 13 Defendants. United States District Court Northern District of California 11 12 13 Plaintiff Kenneth Gibbs, a state prisoner, filed this pro se 14 action under 42 U.S.C. § 1983. 15 Defendants Farley, Graham, Andersen, and Chisman for allegations 16 of excessive force and failure to protect. 17 a motion to dismiss on the grounds that Plaintiff’s claims are 18 barred by the statute of limitations. 19 motion and Defendants filed a reply. 20 follow, Defendants' motion is GRANTED. The case proceeds against Defendants have filed Plaintiff has opposed the For the reasons that 21 I 22 A 23 A motion to dismiss under Federal Rule of Civil Procedure 24 12(b)(6) tests for the legal sufficiency of the claims alleged in 25 the complaint. 26 (9th Cir. 2003). 27 true. 28 legally conclusory statements, not supported by actual factual Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 All allegations of material fact are taken as Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, 1 allegations, need not be accepted. 2 U.S. 662, 678-79 (2009) (courts are not bound to accept as true 3 “a legal conclusion couched as a factual allegation”). 4 plaintiff’s obligation to provide the grounds of his 5 entitle[ment] to relief requires more than labels and 6 conclusions, and a formulaic recitation of the elements of a 7 cause of action will not do.” 8 550 U.S. 544, 555 (2007) (alteration in original) (internal 9 quotation marks omitted). See Ashcroft v. Iqbal, 556 “A Bell Atlantic Corp. v. Twombly, Rather, the allegations in the complaint “must be enough to raise a right to relief above the 11 United States District Court Northern District of California 10 speculative level.” Id. 12 B 13 Section 1983 does not contain its own limitations period. 14 The appropriate period is that of the forum state's statute of 15 limitations for personal injury torts. 16 U.S. 261, 276 (1985); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th 17 Cir. 1999); Elliott v. City of Union City, 25 F.3d 800, 802 (9th 18 Cir. 1994). 19 limitations for personal injury actions is the two-year period 20 set forth at California Civil Procedure Code section 335.1 and is 21 the applicable statute in § 1983 actions. 22 Harris, 370 F.3d 945, 954 (9th Cir. 2004); see also Silva v. 23 Crain, 169 F.3d 608, 610 (9th Cir. 1999) (limitations period for 24 filing § 1983 action in California governed by residual 25 limitations period for personal injury actions in California, 26 which was then one year and was codified in Cal. Civ. Proc. Code 27 § 340(3)); Cal. Civ. Proc. Code § 335.1 (current codification of 28 residual limitations period, which is now two years; enacted in See Wilson v. Garcia, 471 In California, the general residual statute of 2 See Maldonado v. 1 2002). 1 2 It is federal law, however, that determines when a cause of 3 action accrues and the statute of limitations begins to run in a 4 § 1983 action. 5 Elliott, 25 F.3d at 801-02. 6 accrues when the plaintiff knows or has reason to know of the 7 injury that is the basis of the action. 8 at 991-92; Elliott, 25 F.3d at 802. Wallace v. Kato, 549 U.S. 384, 388 (2007); Under federal law, a claim generally See TwoRivers, 174 F.3d 9 C 10 Plaintiff previously proceeded with a case in this Court United States District Court Northern District of California 11 with the same allegations against the same Defendants, Gibbs v. 12 Farley (“Gibbs 1”), Case No. 13-cv-2114-TEH. 13 the Court granted Defendants’ motion for summary judgment in 14 Gibbs 1 and dismissed claims against these Defendants without 15 prejudice for failure to exhaust. 16 TEH, Docket No. 87. 17 remedies until several months after commencing the action. 18 prisoner must exhaust his administrative remedies for 19 constitutional claims prior to asserting them in a civil rights On January 7, 2016, Gibbs 1, Case No. 13-cv-2114- Plaintiff had not exhausted administrative A 20 21 22 23 24 25 26 27 28 1 California Civil Procedure Code section 352.1 recognizes imprisonment as a disability that tolls the statute of limitations when a person is "imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life." See Cal. Civ. Proc. Code § 352.1(a). A district court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007). The Court takes judicial notice that Plaintiff is sentenced to life without the possibility of parole. Request for Judicial Notice (“RJN”), Docket No. 14, Ex. C; See also Gibbs v. Ayers, Case No. 00-6349, Docket No. 46 at 2 (C.D. Cal. May 17, 2001). He is not entitled to this tolling, nor does he argue for this additional tolling. 3 1 complaint. 2 1198, 1199 (9th Cir. 2002). 2 3 42 U.S.C. § 1997e(a); McKinney v. Carey, 311 F.3d The instant action contains the same allegations against the 4 same Defendants regarding the same incident. 5 was able to proceed with this action because the claims were 6 exhausted prior to the filing of the case. 7 the case is untimely. 8 9 However, Plaintiff Defendants argue that The cause of action in this case accrued on April 24, 2013. Complaint at 7. The statute of limitations expired on April 24, 2015. 11 United States District Court Northern District of California 10 untimely unless Plaintiff is entitled to tolling. 3 12 court must give effect to a state's tolling provisions. 13 Hardin v. Straub, 490 U.S. 536, 543-44 (1989); Marks v. Parra, 14 785 F.2d 1419, 1419-20 (9th Cir. 1986). 15 The complaint was filed on January 26, 2016, and is A federal See Plaintiff is entitled to tolling when he was 16 administratively exhausting his claims. 17 F.3d 926, 942-43 (9th Cir. 2005). 18 days of tolling from May 1, 2013, to October 1, 2013, when he was 19 exhausting his grievances through the prison appeal system. 20 Complaint, Ex. A at 2-4. 21 limitations expired on September 24, 2015. 22 on January 26, 2016, is still untimely by four months. See Brown v. Valoff, 422 Plaintiff is entitled to 153 Adding this tolling, the statute of The complaint filed 23 24 25 2 26 27 28 Case No. 13-cv-2114 TEH also contained a claim against Defendant Lt. Diggle that was dismissed for separate reasons. 3 The Court affords Plaintiff application of the mailbox rule as to all his relevant filings. Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date prisoner delivers it to prison authorities). 4 1 Plaintiff is not entitled to tolling while the previous 2 federal action was pending. 3 prejudice is treated for statute of limitations purposes as if it 4 had never been filed.” 5 (7th Cir. 2000). 6 tolled by filing a complaint that is subsequently dismissed 7 without prejudice.” 8 F.3d 56, 59 (1st Cir. 1998). 9 complaint is timely filed and later dismissed, the timely filing “[A] suit dismissed without Elmore v. Henderson, 227 F.3d 1009, 1011 Conversely, “a prescriptive period is not Chico-Velez v. Roche Products, Inc., 139 Thus, “[i]n instances where a of the complaint does not ‘toll’ or suspend the [ ] limitations 11 United States District Court Northern District of California 10 period.” 12 2006) (per curiam); see also Wood v. Elling Corp., 20 Cal. 3d 13 353, 359 (1977) (quoting 51 Am. Jur. 2d Limitation of Actions § 14 311, at 813) (“‘In the absence of a statute, a party cannot 15 deduct from the period of the statute of limitations. . . the 16 time consumed by the pendency of an action in which he sought to 17 have the matter adjudicated, but which was dismissed without 18 prejudice to him.’”). 19 prejudice, meaning that it can be refiled, then the tolling 20 effect of the filing of the suit is wiped out and the statute of 21 limitations is deemed to have continued running from whenever the 22 cause of action accrued, without interruption by that filing.” 23 Elmore, 227 F.3d at 1011. 24 O'Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. “[I]f the suit is dismissed without Nor is there a way for this action to “relate back” to the 25 prior action. 26 does not “relate back” to first complaint because it is not an 27 “amendment” but a separate filing); Young v. Rorem, 977 F.2d 594 28 (9th Cir. 1992) (unpublished) (new action cannot “relate back” to See O'Donnell, 466 F.3d at 1111 (second complaint 5 1 original complaint under Federal Rule of Civil Procedure 15(c) 2 because the original action was dismissed and not pending when 3 the new action was filed); Hill v. Prunty, 55 F. App’x 418, 419 4 (9th Cir. 2003) (new complaint alleging same claim does not 5 relate back to prior complaint, even if the prior complaint was 6 dismissed without prejudice). 7 8 9 10 D Plaintiff argues that he is also entitled to equitable tolling while the prior federal action was pending. This Court must apply California law governing equitable United States District Court Northern District of California 11 tolling. 12 California, when a plaintiff pursues identical claims in two 13 different actions, equitable tolling applies during the pendency 14 of the prior action only if it was filed in a different forum; 15 successive identical claims pursued in the same forum are not 16 entitled to equitable tolling. 17 Hosp. Med. Ctr., 67 Cal. App. 4th 978, 985 (1998) (“[u]nder 18 equitable tolling, the statute of limitations in one forum is 19 tolled as a claim is being pursued in another forum”). 20 doctrine of equitable tolling . . . only applies where the 21 plaintiff has alternate remedies and has acted in good faith.” 22 Thomas v. Gilliland, 95 Cal. App. 4th 427, 434 (Cal. Ct. App. 23 2002). 24 plaintiff from the bar of a limitations statute when, possessing 25 several legal remedies he, reasonably and in good faith, pursues 26 one designed to lessen the extent of his injuries or damage.’” 27 Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) 28 (alteration in original) (quoting Addison v. California, 21 Cal. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). In See Martell v. Antelope Valley “The “Under California law, equitable tolling ‘reliev[es] 6 1 2 3d 313, 317 (1978)). In contrast, when a plaintiff pursues the same claim in the 3 same forum, as in the instant case, the statute of limitations 4 may be tolled under California law only under a “general 5 equitable rule” known as the “Bollinger rule.” 6 Nat’l Fire Ins. Co., 25 Cal. 2d 399, 410 (1944)). 7 “(1) the trial court had erroneously granted the initial nonsuit, 8 (2) dilatory tactics on the part of the defendant had prevented 9 disposition of the first action in time to permit a [timely] See Bollinger v. In Bollinger, second filing . . ., and (3) plaintiff had at all times proceeded 11 United States District Court Northern District of California 10 in a diligent manner.” 12 Bollinger, 25 Cal. 2d at 406). 13 factors present in Bollinger is essential to an application of 14 the rule stated therein.” 15 Allen v. Greyhound Lines, Inc., 656 F.2d 418, 421 (9th Cir. 1981) 16 (“the California Supreme Court in Wood . . . limited Bollinger to 17 its facts . . . [requiring that] plaintiff must demonstrate the 18 existence of those three factors present in Bollinger”). 19 Wood, 20 Cal. 3d at 360 (citing “[T]he concurrence of the three Wood, 20 Cal. 3d at 360; see also Essential to the application of the Bollinger rule is “the 20 fact that the plaintiff is [otherwise] left without a judicial 21 forum for resolution of the claim . . . attributable to forces 22 outside the control of the plaintiff.” 23 Serv. Med. Clinic, 28 Cal. App. 4th 1328, 1336 (Cal. Ct. App. 24 1994) (citing Wood, 20 Cal. 3d at 361-62). 25 “Bollinger rule” is thus intended to “‘serve the ends of justice 26 where technical forfeitures would unjustifiably prevent a trial 27 on the merits.’” 28 Bollinger, 25 Cal. 2d at 410). Hull v. Cent. Pathology Tolling under the Addison, 21 Cal. 3d at 318-19 (quoting 7 1 Because Plaintiff proceeds with the same claims in the same 2 forum, Bollinger applies and the Court will look to the three 3 factors in Bollinger. 4 to be entitled to equitable tolling under Bollinger, a plaintiff 5 must demonstrate all three Bollinger factors. 6 F.2d at 421 (“The [California Supreme Court] thus made it clear 7 that to avoid the literal language of [section 355], the 8 plaintiff must demonstrate the existence of those three factors 9 present in Bollinger.”); Hull, 28 Cal. App. 4th at 1337 California law makes clear that in order See Allen, 656 (reiterating that the three Bollinger factors are prerequisites 11 United States District Court Northern District of California 10 expressly required to apply tolling); Wood, 20 Cal.3d at 360 12 (“the concurrence of the three factors present in Bollinger is 13 essential to an application of the rule”); Dimcheff v. Bay Valley 14 Pizza Inc., 84 F. App’x 981, 982-83 (9th Cir. 2004). 15 With respect to the third Bollinger factor, the Court finds 16 that Plaintiff proceeded in a diligent manner. 17 first two Bollinger factors, trial court error in granting 18 summary judgment and dilatory defense tactics, are not found in 19 this case. 20 summary judgment for failure to exhaust in Gibbs 1. 21 in Gibbs 1, the law is well settled that a prisoner must exhaust 22 administrative remedies prior to filing a civil rights complaint. 23 Nor were there any dilatory tactics on the part of Defendants 24 that delayed disposition of the first action. 25 filed a motion to dismiss for failure to exhaust that was 26 dismissed without prejudice to refiling as a summary judgment 27 motion in light of Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014). 28 While this change of law was beyond Plaintiff’s control, he chose However, the This Court did not erroneously grant the motion for 8 As described Defendants timely 1 to file a first amended complaint and then, six months later, a 2 second amended complaint to add an additional claim, which 3 further lengthened the litigation. 4 judgment in Gibbs 1, Plaintiff argued that by amending the 5 complaint with a new claim, all claims were exhausted. 6 Opposition, Gibbs 1, Docket No. 81. 7 Plaintiff was aware of the exhaustion issue when Defendants filed 8 the motion to dismiss in Gibbs 1. 9 case for several years. 10 In his opposition to summary While this was not correct, Yet, he still litigated the Thus, the Bollinger rule is not applicable to this case United States District Court Northern District of California 11 because Plaintiff can only demonstrate the existence of one of 12 the three factors. Therefore, Plaintiff is not entitled to 13 equitable tolling. See Dimcheff, 84 F. App’x at 983 (tolling not 14 available when second Bollinger factor not met); Flowers v. 15 Alameda Cnty. Sheriff’s Deputy Bixby, No. 12-cv-3181-YGR, 2015 WL 16 1393582, at *4-8 (N.D. Cal. Mar. 26, 2015) (pro se prisoner not 17 entitled to tolling under Bollinger); Sandoval v. Barneburg, No. 18 12–cv-3007-LHK, 2013 WL 5961087, at *3 (N.D. Cal. Nov. 7, 2013) 19 (finding pro se prisoner not entitled to equitable tolling during 20 pendency of his prior federal lawsuit); Mitchell v. Snowden, No. 21 2:15-cv-1167 TLN AC P, 2016 WL 5407858, at *3-7 (E.D. Cal. June 22 10, 2016)(Bollinger not applicable to pro se prisoner where none 23 of the factors were met); Watkins v. Singh, No. 2:12–cv–1343 GEB 24 DAD P, 2014 WL 2930536, at *4 (E.D. Cal. June 27, 2014) (finding 25 plaintiff was not diligent in pursuing his claims and was not 26 entitled to equitable tolling); Dawkins v. Woodford, No. 09–cv- 27 1053 JLS (POR), 2012 WL 554371, at *4–5 (S.D. Cal. Feb. 21, 2012) 28 (concluding pro se prisoner was not entitled to equitable tolling 9 1 during pendency of his prior federal actions, which were 2 dismissed for failing to timely serve defendants). 3 While this is a troubling ruling against a pro se litigant, 4 the Court is bound by federal and state laws. 5 that Plaintiff was informed in October 2013 that his claims were 6 not properly exhausted because he exhausted his claims after 7 filing suit and that Gibbs 1 should be dismissed without 8 prejudice. 9 been running for six months and with tolling plaintiff still had The Court notes In October 2013 the statute of limitations had only two years to timely file a new case. 11 United States District Court Northern District of California 10 fault Plaintiff for continuing to litigate Gibbs 1, his filing of 12 a first and second amended complaint with new claims, attempts to 13 make the unexhausted claims exhausted, further delayed the 14 Court’s adjudication of Gibbs 1. 15 Plaintiff is not entitled to equitable tolling. 4 While the Court cannot For all these reasons, 16 E 17 Equitable estoppel is another doctrine which may apply to 18 extend the limitations period on equitable grounds. 19 535 F.3d at 1051. 20 actions taken by the defendant to prevent a plaintiff from filing 21 suit, sometimes referred to as ‘fraudulent concealment.’” 22 Lukovsky at 1051 (citing Johnson, 314 F.3d at 414). Lukovsky, Equitable estoppel “focuses primarily on 23 24 25 4 26 27 28 The Court notes that it is not clear if the federal equitable tolling rule mentioned in Lukovsky v. San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008) and Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002), applies in § 1983 actions because Lukovsky did not decide the question, see Lukovsky, 535 F.3d at 1051 & n.5, and Johnson was not a § 1983 action. 10 1 Under California law, equitable estoppel requires that: 2 (1) the party to be estopped must be apprised of the facts; (2) that party must intend that his or her conduct be acted on, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) the party asserting the estoppel must reasonably rely on the conduct to his or her injury. 3 4 5 6 7 Lukovsky, 535 F.3d at 1051-52 (quoting Honig v. San Francisco 8 Planning Dep’t, 127 Cal. App. 4th 520, 529 (2005)). In order to 9 establish equitable estoppel, or “fraudulent concealment” by 10 defendants, the plaintiff must show “some active conduct by the 11 United States District Court Northern District of California defendant above and beyond the wrongdoing upon which the 12 plaintiff’s claim is filed.” Id. (internal quotation marks 13 omitted). 14 Plaintiff seeks equitable estoppel due to prison staff 15 preventing him from litigating his court cases from December 27, 16 2013, to January 3, 2015. Plaintiff states he was placed in 17 administrative segregation and did not have access to his legal 18 materials. Opposition, Docket No. 24 at 11-12. 19 Yet, during this time period, Plaintiff was actively 20 litigating Gibbs 1, No. 13-cv-2114-TEH. During this same period 21 he was also actively litigating the following cases in this 22 court: Gibbs v. Carson, No. 13-cv-0860 TEH; Gibbs v. Chisman, No. 23 13-cv-2488 TEH; Gibbs v. Bradford, No. 14-cv-0641 TEH, 24 (transferred and opened as No. 14-cv-0831 TLN-AC (E.D. Cal.); 25 Gibbs v. Petersen, No. 14-cv-4200 TEH; Gibbs v. Dennehy, No. 1426 cv-5301 TEH. 5 Based on Plaintiff’s ability to actively litigate 27 28 5 The Court grants Defendants’ request for judicial notice. 11 Docket 1 all of these cases, which included dozens of filings, the Court 2 does not find that Defendants prevented Plaintiff from filing 3 suit. 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 II For the foregoing reasons, the Court hereby orders as follows: 1. Defendants’ motion to dismiss (Docket No. 13) is GRANTED and this case is DISMISSED with prejudice as untimely. 2. The Clerk shall close the file. Docket No. 13. IT IS SO ORDERED. Dated: 1/18/2017 13 ________________________ THELTON E. HENDERSON United States District Judge 14 15 This order terminates G:\PRO-SE\TEH\CR.16\Gibbs0731.mtd.docx 16 17 18 19 20 21 22 23 24 25 26 27 28 No. 26. A district court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." Bias, 508 F.3d at 1225. 12

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