McGinnis v. Ramos

Filing 61

ORDER (1) Overruling Plaintiff's objections; (2) Adopting Report and Recommendation in its entirety; and (3) Granting Defendant's motion for summary judgment. (ECF Nos. 41 , 46 , 55 . Signed by Judge Janis L. Sammartino on 7/31/2019. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANTHONY McGINNIS,

Case No.: 15-CV-2812 JLS (JLB)
Plaintiff,

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ORDER (1) OVERRULING
PLAINTIFF’S OBJECTIONS;
(2) ADOPTING REPORT AND
RECOMMENDATION IN ITS
ENTIRETY; AND
(3) GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGEMENT

v.
A.T. RAMOS,
Defendant.

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(ECF Nos. 41, 46, 55)

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Presently before the Court is Defendant A.T. Ramos’ Motion for Summary

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Judgement (“MSJ,” ECF No. 41). Also before the Court is Magistrate Judge Jill L.

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Burkhardt’s Report and Recommendation recommending that the Court grant Defendant’s

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Motion (“R&R,” ECF No. 46). Plaintiff filed Objections to the R&R (“Objs.,” ECF No.

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57). Defendant did not file a Reply. After considering the Parties’ arguments and the law,

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the Court (1) OVERRULES Plaintiff’s Objections, (2) ADOPTS the R&R in its entirety,

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and (3) GRANTS Defendant’s Motion for Summary Judgement.

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BACKGROUND

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Magistrate Judge Burkhardt’s R&R contains an accurate recitation of the relevant

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factual and procedural history underlying the instant Motion. See R&R at 2–4. This Order

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incorporates by reference the background as set forth therein.

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LEGAL STANDARDS
I.

Report and Recommendation Review

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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court’s duties regarding a magistrate judge’s report and recommendation. The district court

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“shall make a de novo determination of those portions of the report . . . to which objection

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is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also

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United States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely

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objection, however, “the Court need only satisfy itself that there is no clear error on the

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face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory

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committee’s note (citing Campbell v. U.S. Dist. Ct., 510 F.2d 196, 206 (9th Cir. 1974));

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see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district

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judge must review the magistrate judge’s findings and recommendations de novo if

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objection is made, but not otherwise.”) (emphasis in original).

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II.

Motion for Summary Judgment

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Under Federal Rule of Civil Procedure 56(a), a party may move for summary

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judgment as to a claim or defense or part of a claim or defense. Summary judgment is

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appropriate where the Court is satisfied that there is “no genuine dispute as to any material

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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material facts are those that may affect

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the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

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genuine dispute of material fact exists only if “the evidence is such that a reasonable jury

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could return a verdict for the nonmoving party.” Id. When the Court considers the

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15-CV-2812 JLS (JLB)

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evidence presented by the parties, “[t]he evidence of the non-movant is to be believed, and

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all justifiable inferences are to be drawn in his favor.” Id. at 255.

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The initial burden of establishing the absence of a genuine issue of material fact falls

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on the moving party. Celotex, 477 U.S. at 323. The moving party may meet this burden

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by identifying the “portions of ‘the pleadings, depositions, answers to interrogatories, and

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admissions on file, together with the affidavits, if any,’” that show an absence of dispute

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regarding a material fact. Id. When a party seeks summary judgment as to an element for

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which it bears the burden of proof, “it must come forward with evidence which would

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entitle it to a directed verdict if the evidence went uncontroverted at trial.” See C.A.R.

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Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (quoting

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Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)).

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Once the moving party satisfies this initial burden, the nonmoving party must

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identify specific facts showing that there is a genuine dispute for trial. Celotex, 477 U.S.

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at 324. This requires “more than simply show[ing] that there is some metaphysical doubt

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as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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586 (1986). Rather, to survive summary judgment, the nonmoving party must “by her own

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affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’

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designate ‘specific facts’” that would allow a reasonable fact finder to return a verdict for

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the non-moving party. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 248. The

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non-moving party cannot oppose a properly supported summary judgment motion by

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“rest[ing] on mere allegations or denials of his pleadings.” Anderson, 477 U.S. at 256.

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Courts liberally construe filings and motions of pro se inmates and avoid applying

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summary judgment rules strictly to pro se inmates. See Thomas v. Ponder, 611 F.3d 1144,

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1150 (9th Cir. 2010) (citing Frost v. Symington, 197 F.3d 348, 352 (9th Cir. 1999). Further,

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courts will consider both verified pleadings and verified motions, “where such contentions

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are based on personal knowledge and set forth facts that would be admissible in evidence,

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and where [the inmate] attested under penalty of perjury that the contents of the motions

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or pleadings are true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
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ANALYSIS
I.

Summary of the R&R

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Magistrate Judge Burkhardt considered Defendant’s arguments that (1) Plaintiff

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failed to file his complaint within the established limitations period, and (2) even assuming

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the truth of the allegations, Plaintiff does not meet the standard required for a finding of

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deliberate indifference under the Eighth Amendment. See MSJ at 1. After reviewing the

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record and the law, Magistrate Judge Burkhardt concluded that Plaintiff failed to file his

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complaint within the applicable statute of limitations period. R&R at 7, 13.

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To determine if Plaintiff filed his claim timely, Magistrate Judge Burkhardt first

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determined that Plaintiff’s claims accrued on December 11, 2012, which is the date the

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incident occurred and when Plaintiff received medical treatment. Id. at 7–8. Next,

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Magistrate Judge Burkhardt determined that “because 42 U.S.C. § 1983 contains no

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specific statute of limitations, federal courts apply the forum state’s statute of limitations

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for a personal injury claim to § 1983 claims.” Id. at 8 (citing Alameda Books, Inc. v. City

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of L.A., 631 F.3d 1031, 1041 (9th Cir. 2011)). “California’s statute of limitations for a

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personal injury claim is two years.” Id. (citing Cal. Civ. Proc. Code § 335.1; Jones v.

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Blanas, 393 F.3d 918, 927 (9th Cir. 2004)). Plaintiff filed his Complaint on December 8,

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2015, “almost exactly three years after the incident.” Id. at 3. Thus, absent any tolling,

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Plaintiff’s claims would be barred as untimely filed. See id. at 8.

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Based on the applicable California and Ninth Circuit equitable tolling law,

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Magistrate Judge Burkhardt determined that Plaintiff was entitled to tolling. Id. at 9–11.

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Under the Prison Litigation Reform Act, prisoners must exhaust prison administrative

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remedies before proceeding to federal court, and the applicable statute of limitations must

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be tolled while the prisoner completes this process. Id. at 10 (citing Brown v. Valoff, 422

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F.3d 926, 942–43 (9th Cir. 2005)). “Under California law, a plaintiff is entitled to equitable

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tolling only if three conditions are met: ‘(1) defendant must have had timely notice of the

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claim; (2) defendant must not be prejudiced by being required to defend the otherwise

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barred claim; and (3) plaintiff’s conduct must have been reasonable and in good faith.’”
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Id. at 9 (quoting Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999)). Magistrate Judge

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Burkhardt found that Plaintiff timely noticed Defendant of his claim, Defendant was not

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prejudiced by having to defend the claim, and, although Plaintiff failed to submit any

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evidence, the record indicated that he acted in good faith in pursuing the mandatory

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exhaustion of his administrative remedies.

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Magistrate Judge Burkhardt concluded that Plaintiff was “entitled to tolling during the time

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period he was engaged in the exhaustion process––from January 24, 2013 to September

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26, 2013.” Id. at 11.

Id. at 10–11. Based on these findings,

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Despite the tolling during this period, Magistrate Judge Burkhardt found Plaintiff

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failed timely to file his Complaint. Id. After calculating the days tolled, Magistrate Judge

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Burkhardt concluded that Plaintiff had until August 13, 2015 to file his claim, but he did

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not file until December 8, 2015, “almost four months after the limitations period expired.”

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Id. Magistrate Judge Burkhardt then found that there was “no evidence from which the

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Court could reasonably infer that Plaintiff’s delay in filing was reasonable and in good

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faith.” Id. Thus, Magistrate Burkhardt concluded that there was “no genuine issue of

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material fact that Plaintiff filed this action after the expiration of the statute of limitations,

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even taking into account tolling while Plaintiff exhausted his administrative remedies.” Id.

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II.

Plaintiff’s Objections

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Plaintiff does not raise any objections concerning Magistrate Judge Burkhardt’s

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findings concerning the applicable statute of limitations or the date Plaintiff’s claims

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accrued, and the Court finds no clear error in these findings. The Court therefore must

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agree with Magistrate Judge Burkhardt that Plaintiff’s claims are barred, unless Plaintiff is

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entitled to additional tolling. In his Objections, Plaintiff argues that Magistrate Judge

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Burkhardt was incorrect in finding the statute of limitations expired because several factors

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warrant additional equitable tolling, including: (A) Plaintiff’s status as a state prisoner;

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(B) Plaintiff’s alleged mental disability; (C) lack of access to legal resources, including the

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law library; and (D) Defendant’s failure to provide a CDC 7291 injury report. Objs. at

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3–4. The Court will review each of Plaintiff’s Objections de novo.
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A.

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Plaintiff argues that “he is a state prisoner without change in status of ongoing term

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in custody” and therefore entitled to tolling. Objs. at 3. The Court has previously found

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that Plaintiff’s status as a prisoner does not qualify as a disability permitting equitable

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tolling under California law. ECF No. 23 at 8 (citing Brooks v. Mercy Hosp., 1 Cal. App.

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5th 1, 6–7 (2016)), adopted in its entirety, ECF No. 27 at 2. The Court must once again

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agree that Plaintiff is not entitled to tolling based on his status as a prisoner.

Status as a State Prisoner

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B.

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Plaintiff claims “mental instability” as a reason that the Court should toll the statute

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of limitations. Objs. at 3. Under California law, the statute of limitations is tolled “[i]f a

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person entitled to bring an action . . . is, at the time the cause of action accrued[,] . . . lacking

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the legal capacity to make decisions.” Cal. Civ. Proc. Code § 352(a). To prove he lacked

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legal capacity, Plaintiff must show that he was “incapable of caring for his property or

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transacting business or understanding the nature or effects of his acts.” Alcott Rehab. Hosp.

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v. Super. Ct., 93 Cal. App. 4th 94, 101 (2001). A diagnosis of a mental impairment by

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itself is insufficient to prove tolling is appropriate, however, because “a person adjudged

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mentally ill . . . may nevertheless be capable of transacting business and carrying out his

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affairs, either during lucid intervals or throughout his hospitalization. Hsu v. Mt. Zion

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Hosp., 259 Cal. App. 2d 562, 572–73 (1968).

Legal Capacity

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Here, Plaintiff has introduced no evidence that supports a finding that tolling is

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appropriate under Section 352(a). The only support for this contention is his request for

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an attorney, filed with prison officials on August 17, 2018 and attached to his Objections.

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See Objs. at 13. In the request, Plaintiff states he is dyslexic. Id. Additionally, Plaintiff

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claims that his “mental incapacities” lead to “trouble with decision making” and “affect[]

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[his] reading/writing.” Objs. at 4. But Plaintiff provides no evidence that at the time his

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claim accrued he was unable to transact business (such as filing a legal action) or carry out

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his affairs. Therefore, Plaintiff is not entitled to equitable tolling under Section 352(a).

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Equitable tolling based on his “mental impairment” is similarly not available under

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equitable tolling. Absent an express tolling provision like Section 352, the court can

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consider equitable tolling to extend the period in which to bring a claim. See Capital

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Tracing, Inc. v. United States, 63 F.3d 859, 862 (9th Cir. 1995). As noted above, a plaintiff

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is entitled to equitable tolling in California only if three conditions are met: “(1) defendant

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must have had timely notice of the claim; (2) defendant must not be prejudiced by being

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required to defend the otherwise barred claim; and (3) plaintiff’s conduct must have been

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reasonable and in good faith.” R&R at 9 (quoting Fink, 192 F.3d at 916). Although the

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record indicates that the first two requirements are met, Plaintiff provides no evidence that

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he acted reasonably and in good faith at the time the claim accrued but lacked the capacity

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to file his claim. Without such evidence, Plaintiff is not entitled to equitable tolling.

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C.

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Plaintiff argues that disruptions in his access to legal services is the reason for his

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inability to submit a complaint before the limitations period. Objs. at 3. This contention,

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however, is unsupported by any evidence in the record. Plaintiff has failed to show he took

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reasonable steps to file a complaint timely and that the alleged disruptions stopped his good

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faith effort. Moreover, “limitations on law library access and research materials are not

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extraordinary, but rather are normal conditions of prison life. . . . [Plaintiff] has not shown

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how any specific instance of allegedly inadequate access or materials caused him to be

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unable to file a timely [Complaint].” See Koon v. Barnes, No. 1:11-cv-00131-BAM-HC,

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2014 WL 3615146, at *6 (E.D. Cal. July 21, 2014) (citing Chaffer v. Prosper, 592 F.3d

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1046, 1049 (9th Cir. 2010)).

Access to Legal Resources

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D.

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Finally, Plaintiff argues that Defendant failed to provide him with a CDC 7219 injury

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report following the alleged incident. Objs. at 3. Equitable tolling based on a failure to

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provide documents is only applicable “[i]f a reasonable plaintiff would not have known of

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the existence of a possible claim within the limitations period.” Santa Maria v. Pac. Bell,

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202 F.3d 1170, 1178–79 (9th Cir. 2000), rev’d on other grounds, Socop-Gonzalez v. INS,

Failure to Provide Injury Report

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272 F.3d 1176, 1194–96 (9th Cir. 2001). Despite allegedly not receiving the report,

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Plaintiff still filed his administrative grievance timely, showing he was aware of a possible

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claim absent the report. Because Plaintiff was aware of his possible claim before receiving

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the report, yet did nothing to file his claims timely, the Court finds Plaintiff did not act

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reasonably or in good faith. Equitable tolling is therefore not available on this ground.

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CONCLUSION
Based on the foregoing, the Court:

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1. OVERRULES Plaintiff’s Objections (ECF No. 57);

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2. ADOPTS the R&R in its entirety (ECF No. 46);

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3. GRANTS Defendant’s Motion for Summary Judgement on Plaintiff’s claims (ECF
No. 41); and
4. DENIES Plaintiff’s Motion to appoint counsel (ECF No. 55).
IT IS SO ORDERED.
Dated: July 31, 2019

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