Morris v. Petersen et al

Filing 5

ORDER TO SHOW CAUSE WHY THE ACTION SHOULD NOT BE DISMISSED; AND ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL. Show Cause Response due by 3/12/2013. Signed by Judge Yvonne Gonzalez Rogers on 2/12/2013. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 2/12/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LEON E. MORRIS,

No. C 12-2480 YGR (PR)

Plaintiff,

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ORDER TO SHOW CAUSE WHY
THE ACTION SHOULD NOT BE
DISMISSED; AND ORDER
DENYING REQUEST FOR
APPOINTMENT OF COUNSEL

vs.

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SGT. PETERSEN, et al.,

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Defendants.
_______________________________________/

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INTRODUCTION

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United States District Court
For the Northern District of California

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Plaintiff has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, complaining of
acts and omissions that occurred in 2005 and 2006. The Court will require Plaintiff to address the

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apparent untimeliness of the complaint before considering whether the action should proceed any
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further. His motion for leave to proceed in forma pauperis has been granted.
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Venue is proper because the events giving rise to the claim are alleged to have occurred in
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Salinas Valley State Prison (SVSP), which is located in this judicial district. See 28 U.S.C.
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§ 1391(b).
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In his complaint, Plaintiff names the following Defendants from SVSP: Sergeants Petersen,
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Manzo, Kessler, Begley, Mercado, Sotelo, Sullivan; Captain Ponder; Correctional Officers
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McBride, Wright, Luna, Roque, Locke, E. Sanchez, Guards, S. Espey, D. Beatty, J. Rodriquez, D.
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Crawford, J. Fajardo, A. Fernandez, O. Ponce, M. Zornes, T. Robinson, J. Bowen, M. Lopez,
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Torres, and R. Sanchez; Library Technical Assistants McDonald and Powel; Nurse W. Delfs; and
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Physician Nguyen. Plaintiff seeks monetary damages.
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Plaintiff also requests the appointment of counsel to represent him in this action.
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DISCUSSION
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I.

Initial Review of Complaint

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A.

Standard of Review

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A federal court must engage in a preliminary screening of any case in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
§1915A(a). The court must identify any cognizable claims, and dismiss any claims which are

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

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from a defendant who is immune from such relief. See 28 U.S.C. §1915A(b)(1),(2).
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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Plaintiff's complaint was signed on April 25, 2012, came to the Court in an envelope with an

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April 30, 2012 postmark, and was stamped "FILED" on May 16, 2012. As mentioned above, in his

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complaint, Plaintiff alleges various constitutional violations by Defendants that occurred in 2005

United States District Court
For the Northern District of California

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and 2006.

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Section 1983 does not contain its own limitations period, so the Court looks to the

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

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

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personal injury torts is two years, and the statute of limitations period for § 1983 claims is two

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

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Elliott, 25 F.3d at 802. A claim accrues when the plaintiff knows or has reason to know of the

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injury which is the basis of the action. See TwoRivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir.

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1999); Elliott, 25 F.3d at 802. It is federal law, however, that determines when a cause of action

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accrues and the statute of limitations begins to run in a § 1983 action. Wallace v. Kato, 549 U.S.

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384, 388 (2007); Elliott, 25 F.3d at 801-02. Under federal law, a claim generally accrues when the

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plaintiff knows or has reason to know of the injury which is the basis of the action. See TwoRivers,

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174 F.3d at 991-92; Elliott, 25 F.3d at 802. The statute of limitations period generally begins when

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a plaintiff has knowledge of the "critical facts" of his injury, which are "that he has been hurt and

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who has inflicted the injury." United States v. Kubrick, 444 U.S. 111, 122 (1979). Although the

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

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

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

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

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appears complete and obvious from the face of the complaint because this action was filed more

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than four years after the acts and omissions alleged in the complaint occurred.
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." See Cal. Civ. Proc.

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Code § 352.1. The Court cannot now determine whether Plaintiff receives tolling for the disability

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of imprisonment because he has not alleged the length of his sentence.
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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United States District Court
For the Northern District of California

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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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In another action before this Court, Case no. C 10-04010 YGR (PR), Plaintiff alleged that he

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suffers from mental illness. In an Order dated January 10, 2013, Plaintiff was also ordered to show

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cause why that action should not be dismissed on untimeliness grounds. (Jan. 10, 2013 Order in

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Case no. C 10-04010 YGR (PR) at 3.) A plaintiff can avoid dismissal only if he can show that he

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was "insane" at the "time the cause of action accrued.” Cal. Code of Civ. Proc. 352(a). If he was

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insane at such time, "the time of the disability" will not count toward the filing period. Id. Plaintiff,

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then, must show that he was insane, not simply mentally ill. For purposes of the tolling provision,

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"the 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); cf. Feeley v.

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Southern Pac. Trans. Co., 234 Cal. App. 3d 949, 952 (Cal. Ct. App. 1991) (tolling proper for time

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during which plaintiff was in a coma immediately after the injury that gave rise to his cause of

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action); Snyder v. Boy Scouts of America, 205 Cal. App. 3d 1318, 1324 (Cal. Ct. App. 1988)

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

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is nothing in the present record showing that Plaintiff was "incapable of caring for his property or

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transacting business, or understanding the nature or effects of his acts." In order to make a

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sufficient showing, Plaintiff must provide specific details as to the nature and length of his

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disability. Plaintiff is reminded that the statute of limitations can be tolled only for the period

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during which he was in fact insane.
In the present case, the claims appear on the face of the complaint to be time-barred because

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the acts and omissions giving rise to the claims took place in 2005 and 2006, more than four years

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before this action was filed in May 2012. Plaintiff will be required to file a response to this Order,

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showing cause why the action should not be dismissed as time-barred, as directed below. In his

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response, Plaintiff also must state the length of his sentence for the Court to be able to determine

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United States District Court
For the Northern District of California

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whether he is entitled to any tolling for his imprisonment. Furthermore, Plaintiff is not limited to

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arguing only equitable tolling, or tolling based on "insanity" as explained above -- 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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II.

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Request for Appointment of Counsel
As mentioned above, Plaintiff requests the appointment of counsel to represent him in this

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action. There is no constitutional right to counsel in a civil case unless an indigent litigant may lose

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his physical liberty if he loses the litigation. See Lassiter v. Dep't of Social Services, 452 U.S. 18,

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25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel

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in § 1983 action), withdrawn in part on other grounds on reh'g en banc, 154 F.3d 952 (9th Cir.

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1998) (en banc). The court may ask counsel to represent an indigent litigant under 28 U.S.C. § 1915

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only in "exceptional circumstances," the determination of which requires an evaluation of both (1)

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the likelihood of success on the merits, and (2) the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. See id. at 1525; Terrell v. Brewer, 935

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F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Both

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of these factors must be viewed together before reaching a decision on a request for counsel under

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§ 1915. See id.

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The Court finds that exceptional circumstances entitling Plaintiff to court appointed counsel

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do not exist. The likelihood of Plaintiff's success on the merits cannot be ascertained at this point in

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the proceedings, and the legal issues are not complex. Accordingly, Plaintiff's request 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.

The complaint appears to be time-barred. Plaintiff must file a written response

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showing cause why this action should not be dismissed as barred by the statute of limitations.

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Plaintiff's response must be filed no later than twenty-eight (28) days from the date of this Order.

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Failure to file the response by the deadline will result in the dismissal of this action without

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prejudice.

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2.

Plaintiff's request for appointment of counsel is DENIED WITHOUT PREJUDICE.

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3.

It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court

United States District Court
For the Northern District of California

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

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Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes

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while an action is pending must promptly file a notice of change of address specifying the new

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address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail

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directed to the pro se party by the Court has been returned to the Court as not deliverable, and

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(2) the Court fails to receive within sixty days of this return a written communication from the pro

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se party indicating a current address. See L.R. 3-11(b).

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4.

Extensions of time are not favored, though reasonable extensions will be granted.

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Any motion for an extension of time must be filed no later than fourteen (14) days prior to the

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deadline sought to be extended.

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IT IS SO ORDERED.
DATED:

February 12, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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