Gonzalez Garcia v. MCC Medical Staff et al

Filing 4

ORDER (1) granting 3 Motion for Leave to Proceed in forma pauperis imposing no initial partial filing fee and garnishing balance from prisoner's trust account; and (2) Dismissing complaint for failure to state a claim pursuant to 28 USC 1915(e)(2) and 1915(b). Plaintiff is granted 45 days leave to file a First Amended Complaint. Signed by Judge John A. Houston on 07/15/11. (cc: Warden MCC) (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JOSE GONZALEZ GARCIA,
BOP #92144-198,

Civil No.

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Plaintiff,

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ORDER:
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS,
IMPOSING NO INITIAL PARTIAL
FILING FEE AND GARNISHING
BALANCE FROM PRISONER’S
TRUST ACCOUNT [ECF No.2]; AND

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vs.

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(2) DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C.
§§ 1915(e)(2) AND 1915A(b)

MCC MEDICAL STAFF; INS;
U.S. BORDER PATROL,

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Defendants.

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Plaintiff, Jose Gonzalez Garcia, an inmate currently incarcerated at the Metropolitan

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Correctional Center located in San Diego, California and proceeding pro se, has filed a civil

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rights action pursuant 42 U.S.C. § 1983 which the Court has liberally construed as an action

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brought pursuant to Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971).

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Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he has
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filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No.

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3].

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I.

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MOTION TO PROCEED IFP [ECF No.3]

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All parties instituting any civil action, suit or proceeding in a district court of the United

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States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28

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U.S.C. § 1914(a). An action may proceed despite a party’s failure to prepay the entire fee only

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if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however,

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remain obligated to pay the entire fee in installments, regardless of whether the action is

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ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1) & (2).

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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a

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prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account

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statement (or institutional equivalent) for the prisoner for the six-month period immediately

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preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the certified trust account

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statement, the Court must assess an initial payment of 20% of (a) the average monthly deposits

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in the account for the past six months, or (b) the average monthly balance in the account for the

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past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C.

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§ 1915(b)(1); 28 U.S.C. § 1915(b)(4). That institution having custody of the prisoner must

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collect subsequent payments, assessed at 20% of the preceding month’s income, in any month

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in which the prisoner’s account exceeds $10, and forward those payments to the Court until the

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entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

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The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C.

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§ 1915(a)(1), and that he has attached a certified copy of his trust account statement pursuant to

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28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff’s trust account statement shows that

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he has insufficient funds from which to pay filing fees at this time. See 28 U.S.C. § 1915(b)(4)

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(providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or

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appealing a civil action or criminal judgment for the reason that the prisoner has no assets and
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no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that

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28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case

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based solely on a “failure to pay . . . due to the lack of funds available to him when payment is

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ordered.”). Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP [ECF No.3] and

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assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350

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balance of the filing fees mandated shall be collected and forwarded to the Clerk of the Court

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pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

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II.

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INITIAL SCREENING PER 28 U.S.C. §§ 1915(E)(2)(B)(II) AND 1915A(B)(1)

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Notwithstanding IFP status or the payment of any partial filing fees, the Court must

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subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening

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and order the sua sponte dismissal of any case it finds “frivolous, malicious, failing to state a

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claim upon which relief may be granted, or seeking monetary relief from a defendant immune

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from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir.

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2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v.

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Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not

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only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that

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fails to state a claim).

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Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte

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dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as

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amended, 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to

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the IFP provisions of section 1915 make and rule on its own motion to dismiss before directing

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the U.S. Marshal to effect service pursuant to FED.R.CIV.P. 4(c)(2). See Calhoun, 254 F.3d at

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845; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir.

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1997) (stating that sua sponte screening pursuant to § 1915 should occur “before service of

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process is made on the opposing parties”).

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A.

Bivens Action

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As an initial matter, the Court has construed this matter as one brought pursuant to Bivens
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v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971) because Plaintiff claims

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violations of his civil rights by federal actors. Bivens established that “compensable injury to

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a constitutionally protected interest [by federal officials alleged to have acted under color of

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federal law] could be vindicated by a suit for damages invoking the general federal question

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jurisdiction of the federal courts [pursuant to 28 U.S.C. § 1331].” Butz v. Economou, 438 U.S.

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478, 486 (1978). “Actions under § 1983 and those under Bivens are identical save for the

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replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn,

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940 F.2d 406, 409 (9th Cir. 1991).

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To state a private cause of action under Bivens, Plaintiff must allege: (1) that a right

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secured by the Constitution of the United States was violated, and (2) that the violation was

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committed by a federal actor. Id.; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624

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(9th Cir. 1988). Bivens provides that “federal courts have the inherent authority to award

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damages against federal officials to compensate plaintiffs for violations of their constitutional

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rights.” Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000).

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As an initial matter the Court finds that this action must be dismissed as Plaintiff only

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names Federal agencies as Defendants. A Bivens action may only be brought against the

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responsible federal official in his or her individual capacity. Daly-Murphy v. Winston, 837 F.2d

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348, 355 (9th Cir. 1988). Bivens does not authorize a suit against the government or its agencies

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for monetary relief. FDIC v. Meyer, 510 U.S. 471, 486 (1994); Thomas-Lazear v. FBI, 851 F.2d

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1202, 1207 (9th Cir. 1988); Daly- Murphy, 837 F.2d at 355.

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B.

Statute of Limitations

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Where the running of the statute of limitations is apparent on the face of the complaint,

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dismissal for failure to state a claim is proper. See Cervantes v. City of San Diego, 5 F.3d 1273,

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1276 (9th Cir. 1993). Because section 1983 contains no specific statute of limitation, federal

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courts apply the forum state’s statute of limitations for personal injury actions. Jones v. Blanas,

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393 F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004);

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Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). The applicable statute of limitations in a

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Bivens action is also the state personal injury statute. See Matthews v. Macanas, 990 F.2d 467,
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468-69 (9th Cir. 1993) (citing Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991) (“Actions

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under § 1983 and those under Bivens are identical save for the replacement of a state actor under

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§ 1983 by a federal actor under Bivens.”)). Before 2003, California’s statute of limitations was

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one year. Jones, 393 F.3d at 927. Effective January 1, 2003, the limitations period was

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extended to two years. Id. (citing CAL. CIV. PROC. CODE § 335.1). The two-years limitations

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period, however, does not apply retroactively. Canatella v. Van de Kamp, 486 F.3d 1128, 1132-

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Unlike the length of the limitations period, however, “the accrual date of a § 1983 cause

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of action is a question of federal law that is not resolved by reference to state law.” Wallace v.

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Kato, 549 U.S. 384, 388 (2007); Hardin v. Staub, 490 U.S. 536, 543-44 (1989) (federal law

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governs when a § 1983 cause of action accrues). “Under the traditional rule of accrual ... the tort

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cause of action accrues, and the statute of limitation begins to run, when the wrongful act or

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omission results in damages.” Wallace, 549 U.S. at 391; see also Maldonado, 370 F.3d at 955

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(“Under federal law, 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.” ).

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Here, Plaintiff seeks to hold Defendants liable for an incident which occurred on

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November 19, 1995. (See Compl. at 4.) Thus, Plaintiff would have reason to believe that his

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constitutional rights were violated sixteen years ago. Id.; see also Maldonado, 370 F.3d at 955.

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However, Plaintiff did not file his Complaint in this case until May 10, 2011, which exceeds

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California’s statute of limitation. See CAL. CODE CIV. PROC. § 335.1; Jones, 393 F.3d at 927.

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Plaintiff does not allege any facts to suggest how or why California’s two-year statute of

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limitations might be tolled for a period of time which would make his claims timely. See,

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e.g., CAL. CODE CIV. P. § 352.1 (tolling statute of limitations “for a maximum of 2 years” during

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a prisoner’s incarceration); Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999) (finding that CAL.

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CODE CIV. P. § 352.1 tolls a California prisoner’s personal injury claims accruing before January

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1, 1995 for two years, or until January 1, 1995, whichever occurs later, unless application of the

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statute would result in a “manifest injustice.”).

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Pursuant to Fink, Plaintiff’s claims against Defendants, accruing in 1995, would be tolled

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for two years. California’s two-year statute of limitations would then begin to run -- requiring

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Plaintiff to file this action against these Defendants no later than 1999. Generally, federal courts

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also apply the forum state’s law regarding equitable tolling. Fink, 192 F.3d at 914; Bacon v. City

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of Los Angeles, 843 F.2d 372, 374 (9th Cir. 1988). Under California law, however, a plaintiff

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must meet three conditions to equitably toll a statute of limitations: (1) he must have diligently

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pursued his claim; (2) his situation must be the product of forces beyond his control; and (3) the

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defendants must not be prejudiced by the application of equitable tolling. See Hull v. Central

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Pathology Serv. Med. Clinic, 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); Addison v. State

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of California, 21 Cal.3d 313, 316-17 (Cal. 1978); Fink, 192 F.3d at 916. Here, however,

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Plaintiff has failed to plead any facts which, if proved, would support the equitable tolling of his

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claims. See Cervantes v. City of San Diego, 5 F.3d 1273, 1277 (9th Cir. 1993). Thus, Plaintiff’s

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entire action must be dismissed as barred by the statute of limitations.

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Accordingly, the Court finds that this action must be dismissed pursuant to 28 U.S.C.

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§ 1915(e)(2) because it appears from the face of the pleading that Plaintiff’s claims are time-

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barred. Cervantes, 5 F.3d at 1277.

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III.

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CONCLUSION AND ORDER
1.

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Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No.2] is

GRANTED.
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The Warden for the Metropolitan Correctional Center, or his designee, shall collect

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from Plaintiff’s prison trust account the $350 balance of the filing fee owed in this case by

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collecting monthly payments from the account in an amount equal to twenty percent (20%) of

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the preceding month’s income and forward payments to the Clerk of the Court each time the

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amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2).

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ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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ASSIGNED TO THIS ACTION.

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3.

The Clerk of the Court is directed to serve a copy of this Order on Warden,

Metropolitan Correctional Center, 808 Union Street, San Diego, CA 92101.

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IT IS FURTHER ORDERED that:

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Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C.

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§§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave

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from the date this Order is filed in which to file a First Amended Complaint which cures all the

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deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete in itself

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without reference to the superseded pleading. See S.D. CAL. CIVLR 15.1. Defendants not

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named and all claims not re-alleged in the Amended Complaint will be considered waived. See

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King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended Complaint

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fails to state a claim upon which relief may be granted, it may be dismissed without further

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leave to amend and may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g). See

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McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).

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IT IS SO ORDERED.

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DATED: July 15, 2011

_________________________________________
HON. JOHN A. HOUSTON
United States District Judge

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