Yapundzhyan v. Kernan

Filing 9

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Yvonne Gonzalez Rogers on 1/10/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 1/10/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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ARMEN YAPUNDZHYAN,

No. C 12-3425 YGR (PR)

Plaintiff,

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.

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SCOTT KERNAN, et al.,

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Defendants.
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INTRODUCTION

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This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state

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prisoner. Upon review of the complaint pursuant to 28 U.S.C. § 1915A(a), the Court

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DISMISSES the complaint with leave to file an amended complaint on or before

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January 31, 2013. In this amended complaint, plaintiff is directed to address the issue

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that his claims are barred by the statute of limitations.
DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner

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

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See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and

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No. C 12-3425 YGR (PR)
ORDER OF SERVICE

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dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may

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be granted or seek monetary relief from a defendant who is immune from such relief. See id.

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§ 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica

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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

United States District Court
For the Northern District of California

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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions

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cast in the form of factual allegations if those conclusions cannot reasonably be drawn from

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the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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that a right secured by the Constitution or laws of the United States was violated, and

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that the alleged violation was committed by a person acting under the color of state law. See

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West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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(1)
(2)

Legal Claims
Plaintiff claims arise from an alleged failure by defendants, his jailors at Salinas

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Valley State Prison, to protect him from violence from another inmate in 2005. Such claims

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may be barred by the statute of limitations.

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As of 2002, the statute of limitations for civil actions filed in California is two years,

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as set forth at California Civil Procedure Code § 335.1, which is the applicable statute in

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§ 1983 actions. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). Because an

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inmate suffers from the disability of imprisonment, an inmate has, for claims accruing after

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2002, four years to bring a § 1983 claim for damages in California, i.e., the regular two year

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period under section 335.1 plus two years during which accrual was postponed due to the

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disability of imprisonment. This tolling provision is unavailable for inmates are sentenced to

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life without the possibility of parole. Under federal law, a claim generally accrues for

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calculating the statutory limitations period when the plaintiff knows or has reason to know of

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the injury which is the basis of the action. See TwoRivers v. Lewis, 174 F.3d 987, 991–92

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(9th Cir. 1999); Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). Although the

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

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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

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records. See Franklin v. Murphy, 745 F.2d 1221, 1228–30 (9th Cir. 1984). That is the

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situation here: the defense appears complete and obvious from the face of the complaint

United States District Court
For the Northern District of California

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because this action was filed more than four years after the occurrence of the acts and

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omissions alleged in the complaint.

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The alleged incidents occurred in 2005. The instant complaint was not filed until

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2012, well over the four-year statute of limitations period plaintiff may be entitled to.

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Because it appears that the claims are barred, the complaint is DISMISSED with leave to

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amend. In the amended complaint, plaintiff must (1) reallege his claims (including those

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related to his 2011 disciplinary hearing, which are likely timely), (2) inform the Court of the

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length of his sentence, and (3) show why the claims should not be dismissed as barred by the

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statute of limitations.

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Plaintiff shall file an amended complaint on or before January 14, 2013. The first

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amended complaint must include the caption and civil case number used in this order

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(12-3425 YGR (PR)) and the words FIRST AMENDED COMPLAINT on the first page.

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Because an amended complaint completely replaces the previous complaints, plaintiff must

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include in his first amended complaint all the claims he wishes to present and all of the

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defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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Plaintiff may not incorporate material from the prior complaint by reference. Failure to file

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an amended complaint in accordance with this order will result in dismissal of this action

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without further notice to plaintiff.

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

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informed of any change of address by filing a separate paper with the clerk headed “Notice of

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Change of Address.” He must comply with the Court’s orders in a timely fashion or ask for

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an extension of time to do so. Failure to comply may result in the dismissal of this action

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pursuant to Federal Rule of Civil Procedure 41(b).

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Plaintiff’s motion for the appointment of counsel (Docket No. 8) is DENIED as
premature. He may refile such motion when he files his amended complaint.

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The Clerk shall terminate Docket No. 8.

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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DATED:

January 10, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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No. C 12-3425 YGR (PR)
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