Roby v. Stewart et al

Filing 73

ORDER GRANTING IN PART AND DENYING IN PART 42 MOTION TO DISMISS; SETTING BRIEFING SCHEDULE FOR FILING OF MOTION FOR SUMMARY JUDGMENT. Motions due by 6/28/2012. Replies due by 9/26/2012. Responses due by 8/27/2012. Signed by Judge Claudia Wilken on 3/30/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/30/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
KEVIN ROBY,

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No. C 08-01113 CW (PR)
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS; SETTING BRIEFING
SCHEDULE FOR FILING OF
MOTION FOR SUMMARY JUDGMENT

Plaintiff,

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v.

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T. STEWART, et al.,

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Defendants.
_____________________________/

(Docket no. 42)

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INTRODUCTION

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Plaintiff, a California prisoner incarcerated at Pelican Bay

United States District Court
For the Northern District of California

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State Prison (PBSP) and proceeding pro se, filed the instant civil
rights action pursuant to 42 U.S.C. § 1983 against PBSP prison
officials alleging the violation of his constitutional rights.
On March 16, 2009, another Judge of this court granted

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Defendants' motion to dismiss for failure to exhaust administrative

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remedies pursuant to 42 U.S.C. § 1997e(a).

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appeal, the Ninth Circuit found that Defendants had failed to meet

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their burden of proving that the action should be dismissed for

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failure to exhaust and vacated the judgment of dismissal and

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remanded.

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dismiss the complaint on the ground that Plaintiff's claims are

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time-barred.

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reassigned to the undersigned.

See Docket no. 34.

See Docket no. 26.

On

Defendants then filed a motion to

See Docket no. 42.

Subsequently, the case was

See Docket no. 69.

Now pending before the Court is Defendants' motion to dismiss,

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which has been briefed fully by the parties.

For the reasons

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discussed below, the motion is GRANTED IN PART AND DENIED IN PART.

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//

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//

BACKGROUND

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In his complaint, Plaintiff alleges that he is a

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practicing Satanist. Compl. at 4.

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allegedly has experienced various problems sharing a cell with

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Christian inmates, causing prison officials to place him on

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single cell status.

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Correctional Officer II T. Lucarelli, Correctional Officer I S.

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Trujillo and Captain S. Wheeler, acted with deliberate indifference

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to his safety and impeded his ability to practice Satanism, because

Id.

Because of his religion, he

Plaintiff alleges that Defendants

United States District Court
For the Northern District of California

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of their disdain for his religion.

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Plaintiff alleges that Lucarelli violated his constitutional rights

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by intentionally terminating his single cell status in November

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2002, creating the potential for violence; Trujillo and Wheeler

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violated his constitutional rights by falsifying a classification

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committee hearing transcript to reflect incorrectly that Plaintiff

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had agreed to share a cell with any available inmate; and Trujillo

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did nothing to correct this error and protect Plaintiff from harm

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when Plaintiff told him about it.

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Specifically,

Id. at 4-5, 7.

DISCUSSION

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Compl. at 7-8.

A.

Legal Standard
A motion to dismiss for failure to state a claim under Rule

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12(b)(6) of the Federal Rules of Civil Procedure should be granted

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if the complaint does not proffer "enough facts to state a claim

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for relief that is plausible on its face."

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Twombly, 550 U.S. 544, 570 (2007).

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defense may be raised by a motion to dismiss if the running of the

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relevant statute of limitations is apparent on the face of the

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complaint.

Bell Atlantic Corp. v.

A statute of limitations

Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482,
2

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484 n.1 (9th Cir. 1987).

When a motion to dismiss is based on the

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running of a statute of limitations, the motion can be granted

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"only if the assertions of the complaint, read with the required

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liberality, would not permit the plaintiff to prove that the

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statute was tolled."

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682 (9th Cir. 1980) (citation omitted).

Jablon v. Dean Witter & Co., 614 F.2d 677,

In considering a motion to dismiss, the court must construe

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the complaint in the light most favorable to the plaintiff and

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accept all factual allegations as true.

See Cahill v. Liberty Mut.

United States District Court
For the Northern District of California

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Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

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particularly liberal in construing allegations made in pro se civil

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rights complaints.

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Cir. 2002).

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consider any material outside the complaint but may consider

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exhibits attached thereto.

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Transportation Agency, 261 F.3d 912, 925 (9th Cir. 2001); Fed. R.

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Civ. P. 10(c) (treating exhibits attached to complaint as part of

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complaint for purposes of Rule 12(b)(6) motion).

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B.

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Federal courts are

See Thompson v. Davis, 295 F.3d 890, 895 (9th

In ruling on a Rule 12(b)(6) motion, the court may not

See Arpin v. Santa Clara Valley

Statute of Limitations for § 1983 Claims
Defendants argue Plaintiff's claims against them are time-

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barred because the complaint was not filed within the applicable

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limitations period.

Section 1983 does not contain its own

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limitations period.

See Elliott v. City of Union City, 25 F.3d

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800, 802 (9th Cir. 1994).

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of the forum state’s statute of limitations for personal injury

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torts.

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event the state has multiple statutes of limitations for different

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torts, federal courts considering claims brought pursuant to § 1983

Rather, the appropriate period is that

See Wilson v. Garcia, 471 U.S. 261, 276 (1985).

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In the

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borrow the general or residual statute for personal injury actions.

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See Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999).

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Prior to January 1, 2003, California's general residual

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statute of limitations for personal injury actions was one year.

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See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004) (citing

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Cal. Code Civ. Proc. § 340(3)).

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statute of limitations was extended to two years.

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(citing Cal. Code Civ. Proc. § 335.1).

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limitations does not apply retroactively to claims accruing before

Effective January 1, 2003, the
Id. at 955

The two-year statute of

United States District Court
For the Northern District of California

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January 1, 2003, except for victims of the September 11,2001

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terrorist attacks.

Id.

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Tolling

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When applying state statutes of limitations to federal claims,

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federal courts also must apply corresponding state tolling

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provisions.

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A provision of California law provides tolling for imprisonment.

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Specifically, California Civil Procedure Code section 352.1

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recognizes imprisonment as a disability that tolls the statute of

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limitations when a person is "imprisoned on a criminal charge, or

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in execution under the sentence of a criminal court for a term of

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less than for life."

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is not indefinite, however; the disability of imprisonment delays

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the accrual of the cause of action for a maximum of two years.

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id.

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TwoRivers v. Lewis, 174 F.3d 987, 992 (9th Cir. 1999).

Cal. Code Civ. Proc. § 352.1(a).

The tolling

See

Here, Plaintiff is serving a life sentence without the

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possibility of parole.

Consequently, Defendants argue, the tolling

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provision of section 352.1 does not apply to him.

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literal reading of section 352.1 tolls the statute of limitations
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Although the

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only for persons who are serving terms of imprisonment less than

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for life, California case law holds that a prisoner serving a life

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sentence is entitled to the tolling benefit of section 352.1.

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Grasso v. McDonough Power Equip., 264 Cal. App. 2d 597, 601 (1968)

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(holding that provision restricting tolling to those serving terms

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of less than for life did not apply to prisoner serving term of

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life with possibility of parole because the "reason [for the

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tolling restriction] has virtually disappeared" in view of changes

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in California law since the provision was enacted, which afford

See

United States District Court
For the Northern District of California

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greater civil rights to life prisoners).

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recognized that "[t]he California courts have read out of the

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statute the qualification that the period of incarceration must be

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'for a term less than for life' in order for a prisoner to qualify

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for tolling."

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2004) (citing Grasso); see also Martinez v. Gomez, 137 F.3d 1124,

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1126 (9th Cir. 1998) (applying tolling provision to prisoner

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sentenced to life in prison with possibility of parole because

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"Grasso remains the most accurate prediction of what the California

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Supreme Court would hold as the law.")

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The Ninth Circuit has

Jones v. Blanas, 393 F.3d 918, 928 n.5 (9th Cir.

Based on the interpretation and application of section 352.1

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that has evolved since the ruling in Grasso, the Court agrees with

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those courts that have found that all prisoners are entitled to

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application of the two-year tolling provision, even those not

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sentenced to a term of less than for life.

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2011 WL 4434541, *2 (N.D. Cal.) (applying Grasso to find prisoner

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sentenced to death entitled to statutory tolling under section

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352.1); Arisman v. Woodford, 2008 WL 901694, *2 (N.D. Cal.) (same).

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There is no guarantee that a prisoner sentenced to either life with
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See Ayala v. Ayers,

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the possibility of parole or an indeterminate sentence of, for

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example, fifteen or twenty-five years to life, ultimately will be

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released on parole.

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Martinez, which addressed claims brought by prisoners serving terms

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of life with the possibility of parole, cannot be distinguished on

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the ground that Plaintiff is serving a term of life without the

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possibility of parole.

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two-year tolling provision.

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C.

United States District Court
For the Northern District of California

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Consequently, the holdings in Grasso and

Plaintiff is entitled to application of the

Plaintiff's Claims
Federal, not state, law determines when a civil rights claim

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accrues.

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accrues when the plaintiff knows or has reason to know of the

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injury which is the basis of the action."

TwoRivers, 174 F.3d at 991.

Under federal law, "a claim

Id.

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1.

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Plaintiff alleges that in May 2002, PBSP staff, in reliance on

Claim against Lucarelli

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a mental health clinician's recommendation that Plaintiff be

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single-celled or housed with another Satanist, placed Plaintiff on

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single-cell status.

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Lucarelli allegedly violated Plaintiff's Eighth and First Amendment

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rights by terminating his single-cell status because Lucarelli was

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offended that PBSP was accommodating a Satanist.

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Plaintiff's claim against Lucarelli accrued on November 17, 2002,

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the date he alleges Lucarelli terminated his single-cell status.

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Applying the one-year statute of limitations then in effect

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together with the two-year tolling provision of section 352.1,

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Plaintiff had until November 17, 2005 to file a complaint against

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Lucarelli, absent any additional tolling.

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complaint on February 25, 2008.

Compl. at 4.

But, on November 17, 2002,

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Id.

Thus,

He filed the present

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The Ninth Circuit holds that "the applicable statute of

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limitations must be tolled while a prisoner completes the mandatory

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[administrative] exhaustion process."

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926, 943 (9th Cir. 2005).

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2002, he administratively grieved Lucarelli's actions and asked to

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be placed back on single-cell status.

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grievance was granted partially at the second level of review on

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February 5, 2003, when the warden issued a modification order

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requiring that a Unit Classification Committee (UCC) re-evaluate

Brown v. Valoff, 422 F.3d

Plaintiff alleges that on November 20,

He further alleges that his

United States District Court
For the Northern District of California

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Plaintiff's appropriate cell designation, taking into consideration

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the health clinician’s recommendation.

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Judicial Not., Ex. A.

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not appeal this decision to the Director's level of review, he did

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not complete the exhaustion process and, consequently, under Brown,

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he is not entitled to tolling during the administrative grievance

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process.

Compl at 4; Defs.' Req.

Defendants argue that because Plaintiff did

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Even if the statute was tolled, Plaintiff had until February

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5, 2006 to file a lawsuit against Lucarelli, but did not file the

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present complaint until February 28, 2008, more than two years

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after the limitations period expired.

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against Lucarelli is time-barred unless Plaintiff is entitled to

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additional non-statutory tolling.

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a.

Accordingly, the claim

Equitable Estoppel

Plaintiff argues that he is entitled to invoke the doctrine of

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equitable estoppel to prevent dismissal of his claim against

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Lucarelli as time-barred.

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the actions taken by the defendant in preventing a plaintiff from

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filing suit."

Equitable estoppel "focuses primarily on

Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176
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(9th Cir. 2000).

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a defendant, "the plaintiff must point to some fraudulent

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concealment, some active conduct by the defendant 'above and beyond

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the wrongdoing upon which the plaintiff's claim is filed, to

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prevent the plaintiff from suing in time.'"

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Francisco, 535 F.3d 1044, 1052 (9th Cir. 2008).

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maintains Lucarelli is equitably estopped from arguing that

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Plaintiff's claim against him is time-barred because Plaintiff's

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delay in filing his complaint against Lucarelli was induced by

For the court to find equitable estoppel against

Lukovsky v. San
Here, Plaintiff

United States District Court
For the Northern District of California

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Trujillo and Wheeler's fraudulent conduct.

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such argument is based, however, is the same conduct that underlies

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Plaintiff's claims of wrongdoing against Trujillo and Wheeler in

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the present complaint.

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invoke the doctrine of equitable estoppel with respect to his claim

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against Lucarelli.

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b.

The conduct on which

Accordingly, Plaintiff is not entitled to

Equitable Toling

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Plaintiff further argues that the statute of limitations

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should be equitably tolled for the period in which he sought relief

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against Defendants through state habeas proceedings.

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equitable tolling doctrine, a three-part test must be satisfied:

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(1) timely notice to the defendant in filing the first claim;

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(2) lack of prejudice to the defendant in gathering evidence to

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defend against the second claim; and (3) good faith and reasonable

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conduct by the plaintiff in filing the second claim.

Collier v.

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City of Pasadena, 142 Cal. App. 3d 917, 924 (1983).

"Application

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of the three-part test is mandatory."

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Diego, 5 F.3d 1273, 1275-76 (9th Cir. 1993).

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To invoke the

Cervantes v. City of San

"The timely notice requirement essentially means that the
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first claim must have been filed within the statutory period."

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Collier, 142 Cal. App. 3d at 924.

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state habeas petition on July 26, 2007.

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California law Plaintiff was required to file his claim against

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Lucarelli by February 5, 2006 at the latest.

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file his first state habeas petition until more than one year

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later, the filing of that petition does not satisfy the essential

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"timely notice" requirement of the three-part equitable tolling

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test.

United States District Court
For the Northern District of California

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As discussed above, under

Because he did not

Accordingly, Plaintiff is not entitled to equitable tolling

of the limitations period for his claim against Lucarelli.

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Here, Plaintiff filed his first

c.

Summary

Based on the above, the Court finds that Plaintiff's claim

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against Lucarelli is barred by the statute of limitations, he is

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not entitled to invoke the doctrine of equitable estoppel, and the

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claim is not subject to equitable tolling.

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to dismiss this claim is GRANTED.

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2.

Accordingly, the motion

Claims Against Trujillo and Wheeler
a.

Falsification of Housing Agreement

Plaintiff alleges that on February 20, 2003, he attended a UCC

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hearing, also attended by Wheeler and Trujillo, that was convened

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to determine his proper housing status, as required by the February

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5, 2003 modification order.

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during the hearing it was agreed by all parties that he would be

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housed only with another Satanist.

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allegedly falsified the hearing transcript to state that Plaintiff

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indicated during the hearing that he "never wanted to be single[]

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cell[ed]," and would house with anyone.

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Compl. at 4.

Id.

According to Plaintiff,

But Wheeler and Trujillo

Id. at 4-5.

Plaintiff apparently first learned of the allegedly falsified
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transcript on August 6, 2005, during a disciplinary hearing

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convened because he refused to accept a Christian cellmate.

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4; Defs.' Req. Judicial Not., Ex. B.

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an administrative grievance on August 7, 2005, requesting that the

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error be corrected.

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rejected because Plaintiff had not yet attempted to resolve the

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dispute informally with his assigned counselor.

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the grievance to his counselor on August 30, 2005, and his

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counselor partially granted it on September 2, 2005, allowing

Compl. at 5.

Id. at

He alleges that he submitted

The grievance initially was

Id.

He submitted

United States District Court
For the Northern District of California

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Plaintiff to raise his housing concerns during his next UCC hearing

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scheduled for later that month.

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Plaintiff did not appeal his counselor's decision to the first

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formal level of review.

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earlier in this litigation, Plaintiff alleged that, some time

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between mid-September and mid-October 2005, Counselor O'Dell

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advised him not to pursue his administrative grievance further.

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See id.

Defs.' Req. Judicial Not., Ex. B.

In a declaration submitted

Defendants argue that Plaintiff's claims against Wheeler and

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Trujillo concerning their alleged falsification of the hearing

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transcript accrued on August 6, 2005, the date on which Plaintiff

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alleges he first learned of Wheeler and Trujillo's alleged

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misconduct, and that those claims are time-barred because the

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statute of limitations was not tolled under Brown and Plaintiff,

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therefore, was required to file suit under the two-year statute of

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limitations that went into effect on January 1, 2003, i.e., by

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August 6, 2007.

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statute was tolled under Brown, it was tolled, at the latest, until

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October 18, 2005, when Counselor O'Dell told Plaintiff not to

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pursue his administrative grievance further, which would have

Alternatively, they argue that, even if the

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required Plaintiff to file his lawsuit by no later than October 18,

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2007.

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The Court need not address whether Plaintiff's administrative
grievances served to toll the statute; even if they did not, the

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claim is timely.

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August 6, 2005, the date on which he allegedly learned of the

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falsified transcript, he had a total of four years (two years

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pursuant to the statute of limitations (Cal. Code Civ. Pro.

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§ 335.1) and two years pursuant to the statutory tolling provision

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United States District Court
For the Northern District of California

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(Cal. Code Civ. Pro. § 352.1)), i.e., until August 6, 2009, to file

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a lawsuit against Wheeler and Trujillo.

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was filed on February 28, 2008, the claims are not time-barred.

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Specifically, if Plaintiff's claim accrued on

Because the present action

b. Deliberate Indifference to Safety

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Plaintiff alleges that, on or around August 24, 2005, he

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attempted to notify Trujillo of the potential danger to his safety

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once he was forced to double-cell with an Evangelical Christian

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inmate, but Trujillo did nothing to help him.

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inmate ended up stabbing Plaintiff.

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Compl. at 5, 7.

The

Plaintiff does not allege that he administratively grieved

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Trujillo's alleged inaction.

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Plaintiff had two years, i.e., until August 24, 2007, to file a

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complaint against Trujillo, and the instant claim, filed on

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February 25, 2008, is time-barred.

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had a total of four years to file suit for claims that arose after

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January 1, 2003.

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to file a lawsuit bringing this claim against Trujillo until August

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24, 2009, the claim is not time-barred.

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//

Compl. at 2.

Thus, Defendants argue,

As discussed above, Plaintiff

Accordingly, because Plaintiff was not required

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c.

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Based on the above, Defendants' motion to dismiss the claims

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Summary

against Trujillo and Wheeler as time-barred is DENIED.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

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9
United States District Court
For the Northern District of California

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Defendants' motion to dismiss all claims against

Defendant Lucarelli as time-barred is GRANTED.
2.

Defendants' motion to dismiss the claims against Trujillo

and Wheeler as time-barred is DENIED.
3.

No later than ninety days from the date of this Order,

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Defendants shall file a motion for summary.

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supported by adequate factual documentation and shall conform in

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all respects to Federal Rule of Civil Procedure 56.

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are of the opinion that this case cannot be resolved by summary

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judgment, they shall so inform the Court prior to the date the

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summary judgment motion is due.

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shall be promptly served on Plaintiff.

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a.

The motion shall be

If Defendants

All papers filed with the Court

Plaintiff's opposition to the motion for summary

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judgment shall be filed with the Court and served on Defendants no

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later than sixty days after the date on which Defendants' motion is

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filed.

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be given to pro se plaintiffs facing a summary judgment motion:

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The Ninth Circuit has held that the following notice should

The defendant has made a motion for summary
judgment by which they seek to have your case dismissed.
A motion for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure will, if granted, end
your case.
Rule 56 tells you what you must do in order to
oppose a motion for summary judgment. Generally, summary
judgment must be granted when there is no genuine issue
of material fact -- that is, if there is no real dispute
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about any fact that would affect the result of your case,
the party who asked for summary judgment is entitled to
judgment as a matter of law, which will end your case.
When a party you are suing makes a motion for summary
judgment that is properly supported by declarations (or
other sworn testimony), you cannot simply rely on what
your complaint says. Instead, you must set out specific
facts in declarations, depositions, answers to
interrogatories, or authenticated documents, as provided
in Rule 56(e), that contradict the facts shown in the
defendant's declarations and documents and show that
there is a genuine issue of material fact for trial. If
you do not submit your own evidence in opposition,
summary judgment, if appropriate, may be entered against
you. If summary judgment is granted [in favor of the
defendants], your case will be dismissed and there will
be no trial.

United States District Court
For the Northern District of California

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See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en

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banc).

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Plaintiff is advised to read Rule 56 of the Federal Rules of

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Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)

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(party opposing summary judgment must come forward with evidence

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showing triable issues of material fact on every essential element

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of his claim).

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burden of proving his allegations in this case, he must be prepared

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to produce evidence in support of those allegations when he files

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his opposition to Defendants' dispositive motion.

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may include sworn declarations from himself and other witnesses to

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the incident, and copies of documents authenticated by sworn

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declaration.

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simply by repeating the allegations of his complaint.

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b.

Plaintiff is cautioned that because he bears the

Such evidence

Plaintiff will not be able to avoid summary judgment

Defendants shall file a reply brief no later than

thirty (30) days after the date Plaintiff's opposition is filed.

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c.

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the reply brief is due.

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unless the Court so orders at a later date.

The motion shall be deemed submitted as of the date
No hearing will be held on the motion

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4.

Discovery may be taken in this action in accordance with

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the Federal Rules of Civil Procedure.

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to Rule 30(a)(2) is hereby granted to Defendants to depose

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Plaintiff and any other necessary witnesses confined in prison.

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5.

Leave of the Court pursuant

All communications by Plaintiff with the Court must be

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served on Defendants' counsel, by mailing a true copy of the

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document to Defendants' counsel.

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United States District Court
For the Northern District of California

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6.

It is Plaintiff's responsibility to prosecute this case.

Plaintiff must keep the Court informed of any change of address and
must comply with the Court's orders in a timely fashion.
7.

Extensions of time are not favored, though reasonable

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extensions will be granted.

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must be filed no later than fifteen days prior to the deadline

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sought to be extended.

Any motion for an extension of time

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This Order terminates Docket no. 42.

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IT IS SO ORDERED.

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DATED: 3/30/2012
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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