Rodgers v. Superior Court of San Diego

Filing 3

ORDER: (1) Granting Motion to Proceed in Forma Pauperis; and (2) Dismissing Civil Action for Failing to State a Claim Upon which Relief can be Granted Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Signed by Judge Roger T. Benitez on 2/28/2017.(All non-registered users served via U.S. Mail Service)(knb)

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FI LSD 1 2 w251 3 4 ^11/ dlfBTt <*V 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FLOYD ANTHONY RODGERS, Patient #067265-9, 12 Case No.: 3:16-cv-02864-BEN-JMA ORDER: Plaintiff, 13 (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; and vs. 14 SUPERIOR COURT OF SAN DIEGO, 15 Defendants. 16 (2) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 17 18 19 20 21 Floyd Anthony Rodgers (“Plaintiff’), proceeding pro se, filed this civil rights 22 complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 while he was civilly detained at 23 Atascadero State Hospital (“ASH”) in Atascadero, California.1 (Doc. No. 1.) Plaintiff 24 did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead he filed a 25 26 27 28 i It appears Plaintiff is no longer civilly detained; on October 12,2016, he filed a Notice of Change of Address indicating he has been released from custody and is now residing in Chula Vista, California. (Doc. No. 4.) 1 3:16-cv-02864-BEN-JMA 1 Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Doc. 2 No. 2.) 3 I. Motion to Proceed IFP 4 All parties instituting any civil action, suit or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiffs failure to 7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 8 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 9 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 10 “Unlike other indigent litigants, prisoners proceeding IFP must pay the full amount 11 of filing fees in civil actions and appeals pursuant to the PLRA [Prison Litigation Reform 12 Act].” Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As defined by the PLRA, a 13 “prisoner” is “any person incarcerated or detained in any facility who is accused of, 14 convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or 15 the terms and conditions of parole, probation, pretrial release, or diversionary program.” 16 28 U.S.C. § 1915(h). 17 A “civil detainee” is not a “prisoner” within the meaning of the PLRA. Andrews v. 18 King, 398 F.3d 1113, 1122 (9th Cir 2005); Agyeman, 296 F.3d at 886 (holding that INS 19 detainee not also facing criminal charges is not a “prisoner” under § 1915); see also Page 20 v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000) (person confined under California’s 21 Sexually Violent Predator Law, while a “a ‘prisoner’ within the meaning of the PLRA 22 when he served time for his conviction,... ceased being a ‘prisoner’ when he was 23 released from the custody of the Department of Corrections.”); Mullen v. Surtshin, 590 F. 24 25 26 27 28 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:16-cv-02864-BEN-JMA 1 Supp. 2d 1233, 1240 (N.D. Cal. 2008) (holding plaintiff “adjudicated NGI [not guilty by 2 reason of insanity] and committed to [Napa State Hospital] as a result of that 3 adjudication” was “not a prisoner as defined by the PLRA.”). As alleged in his Complaint, Plaintiff was a civilly committed patient at ASH, and 4 5 not a “prisoner” as defined by 28 U.S.C. § 1915(h) when he filed this action. (Doc. No. 6 I.) Therefore, the filing fee provisions of 28 U.S.C. § 1915(b) do not apply. Andrews, 7 398 F.3d at 1122. Accordingly, the Court has reviewed Plaintiffs affidavit of assets as it 8 would for any other non-prisoner litigant seeking IFP status, and finds it is sufficient to 9 show that he is unable to pay the fees or post securities required to maintain this action. 10 See S.D. Cal. CivLR 3.2(d). Plaintiffs Motion to Proceed IFP pursuant to 28 U.S.C. § 11 1915(a) is therefore GRANTED. (Doc. No. 2.) 12 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2) 13 A. Standard of Review 14 A complaint filed by any person proceeding in forma pauperis is subject to sua 15 sponte dismissal if it is “frivolous, malicious, fail[s] to state a claim upon which relief 16 may be granted, or seek[s] monetary relief from a defendant immune from such relief.” 17 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per 18 curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 19 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 20 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis 21 complaint that fails to state a claim.”). 22 All complaints must contain “a short and plain statement of the claim showing that 23 the pleader is entitled to relief.” Fed. R. Crv. P. 8(a)(2). Detailed factual allegations are 24 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 25 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) 26 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 27 whether a complaint states a plausible claim for relief [is]... a context-specific task that 28 requires the reviewing court to draw on its judicial experience and common sense.” Id. 3 3:16-cv-02864-BEN-JMA 1 The “mere possibility of misconduct” falls short of meeting this plausibility standard. Id.; 2 see also Moss v. US. Secret Service, 572 F.3d 962, 969 (9th Gir. 2009). 3 “When there are well-pleaded factual allegations, a court should assume their 4 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 5 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 6 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 7 allegations of material fact and must construe those facts in the light most favorable to 8 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 9 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 10 However, while the court “ha[s] an obligation where the petitioner is pro se, 11 particularly in civil rights cases, to construe the pleadings liberally and to afford the 12 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 13 2010) (citing Bretz v. Kelman, 773 F.2d 1026,1027 n.l (9th Cir. 1985)), it may not 14 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 15 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Plaintiffs Complaint 16 B. 17 Plaintiff alleges that he was criminally convicted of charges of “serious great 18 bodily injury” on November 22, 2002, in a San Diego Superior Court. (Compl. at 3.) 19 Plaintiff claims his sentence resulted in “double jeopardy,” as well as “cruel and unusual 20 punishment,” in violation of his constitutional rights. (Id.) Plaintiff was then housed in 21 the custody of the California Department of Corrections and Rehabilitation (“CDCR”) for 22 fifteen years. (Id.) Statute of Limitations 23 C. 24 Plaintiffs claims arose when he was sentenced in 2002. (Doc. No. 1 at 1, 3-4.) “A 25 claim may be dismissed [for failing to state a claim] on the ground that it is barred by the 26 applicable statute of limitations only when ‘the running of the statute is apparent on the 27 face of the complaint.”’ Von Saher v. Norton Simon Museum ofArt at Pasadena, 592 28 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 4 3:16-cv-02864-BEN-JMA 1 997 (9th Cir. 2006)). ‘“A complaint cannot be dismissed unless it appears beyond doubt 2 that the plaintiff can prove no set of facts that would establish the timeliness of the 3 claim.’” Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)); 4 see also Cervantes v. City ofSan Diego, 5 F.3d 1273, 1276-77 (9th Cir. 1993) (where the 5 running of the statute of limitations is apparent on the face of a complaint, dismissal for 6 failure to state a claim is proper, so long as Plaintiff is provided an opportunity to amend 7 in order to allege facts which, if proved, might support tolling); see also Tahoe-Sierra 8 Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir. 2000) 9 (court may raise the defense of statute of limitations sua sponte); Hughes v. Lott, 350 10 F.3d 1157, 1163 (11th Cir. 2003) (upholding sua sponte dismissal under 28 U.S.C. § 11 12 13 1915(e)(2)(B) of prisoner’s time-barred complaint). Because section 1983 contains no specific statute of limitation, federal courts apply the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393 14 F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); 15 Finkv. Shedler, 192 F.3d911, 914 (9th Cir. 1999). Before 2003, California’s statute of 16 limitations was one year. Jones, 393 F.3d at 927. Effective January 1, 2003, the 17 limitations period was extended to two years. Id. (citing Cal. Civ. Proc. Code § 335.1). 18 The law of the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394 19 (2007) (citing Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927 20 (noting that in actions where the federal court borrows the state statute of limitation, the 21 federal court also borrows all applicable provisions for tolling the limitations period 22 found in state law). 23 Under California law, the statute of limitations for prisoners serving less than a life 24 sentence is tolled for two years. Cal. Crv. Proc. Code § 352.1(a); Johnson v. California, 25 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S. 499 (2005). 26 Accordingly, the effective statute of limitations for most California prisoners is three 27 years for claims accruing before January 1, 2003 (one year limitations period plus two 28 5 3:16-cv-02864-BEN-JMA 1 year statutory tolling), and four years for claims accruing thereafter (two year limitations 2 period plus two years statutory tolling). 3 Unlike the length of the limitations period, however, “the accrual date of a § 1983 4 cause of action is a question of federal law that is not resolved by reference to state law.” 5 Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543-44 (federal law governs when a 6 § 1983 cause of action accrues). “Under the traditional rule of accrual... the tort cause of 7 action accrues, and the statute of limitation begins to run, when the wrongful act or 8 omission results in damages.” Wallace, 549 U.S. at 391. Put another way, “[u]nder 9 federal law, a claim accrues when the plaintiff knows or has reason to know of the injury 10 which is the basis of the action.” Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174 11 F.3d 987, 991 (9th Cir. 1999). 12 In this case, the “wrongful act” which is alleged to have caused Plaintiff harm 13 occurred almost fifteen years before Plaintiff filed his Complaint in this action, and far 14 outside California’s statute of limitations, even including all presumed periods of tolling 15 provided by statute, or pending the exhaustion of any administrative remedies. Wallace, 16 591 U.S. at 391; see also Maldonado, 370 F.3d at 955; Cal. Code Crv. Proc. § 335.1 17 (tolling statute of limitations “for a maximum of 2 years” during a prisoner’s 18 incarceration); Jones, 393 F.3d at 927; Brown v. Valojf, 422 F.3d 926, 943 (9th Cir. 2005) 19 (finding that “the applicable statute of limitations must be tolled while a prisoner 20 completes the mandatory exhaustion process” required by 42 U.S.C. § 1997e(a)).3 21 Specifically, Plaintiff claims he was denied his constitutional rights when he was 22 sentenced in 2002. (See Compl. at 1, 3-4.) Therefore, he had “reason to know” the basis 23 of his cause of action in 2002, but did not file this case until November 21, 2016— more 24 than a decade after the limitations period elapsed. See Maldonado, 370 F.3d at 955. 25 26 27 28 3 In fact, Plaintiff concedes that he did not exhaust available administrative remedies prior to filing suit. (Doc. No. 1 at 6.) 6 3:16-cv-02864-BEN-JMA 1 Plaintiffs claims could be considered timely if, in his Complaint, he alleges facts 2 sufficient to show the limitations period may be equitably tolled. See Cervantes, 5 F.3d 3 at 1276-77. Generally, federal courts also apply the forum state’s law regarding equitable 4 tolling. Fink, 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d 372, 374 (9th 5 Cir.1988). Under California law, Plaintiff must meet three conditions to equitably toll the 6 statute of limitations: (1) he must have diligently pursued his claim; (2) his situation must 7 be the product of forces beyond his control; and (3) Defendants must not be prejudiced 8 by the application of equitable tolling. See Hull v. Central Pathology Serv. Med Clinic, 9 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); Addison v. State of California, 21 10 11 Cal.3d 313, 316-17 (Cal. 1978); Fink, 192 F.3d at 916. The Court finds Plaintiffs Complaint lacks any factual allegations that, if proven, 12 would support any plausible claim for equitable tolling. See Cervantes, 5 F.3d at 1277; 13 Iqbal, 556 U.S. at 679. Accordingly, the Court finds Plaintiffs claims are barred by the 14 statute of limitations, and his entire Complaint must be dismissed for failing to state a 15 claim upon which section 1983 relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 16 Barren, 152 F.3d at 1194. 17 D. Criminal Proceedings 18 To the extent that Plaintiff seeks damages based on an allegedly unconstitutional 19 criminal conviction and sentence, he may not pursue those claims in a civil rights action 20 pursuant to 42 U.S.C. § 1983 without first showing that his conviction has already been 21 invalidated. See Heck v. Humphry, 512 U.S. 477, 486-87 (1994). 22 23 24 25 26 27 28 In Heck, the Supreme Court held: in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas 7 3:16-cv-02864-BEN-JMA corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. 1 2 3 4 5 6 Id. at 486-87. “Suits challenging the validity of the prisoner’s continued incarceration lie within ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state 7 prisoner who is making a constitutional challenge to the conditions of his prison life, but 8 not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 9 2003), quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973) (holding that a writ of 10 habeas corpus is “explicitly and historically designed” to provide a state prisoner with the 11 12 13 “exclusive” means to “attack the validity of his confinement” in federal court). Plaintiffs claims amount to an attack on the validity of his underlying criminal conviction and sentence, and may not proceed pursuant to § 1983, unless his conviction 14 has already been invalidated. Heck, 512 U.S. at 486-87; Ramirez, 334 F.3d at 855-56 15 (“Absent such a showing, ‘[e]ven a prisoner who has fully exhausted available state 16 remedies has no cause of action under § 1983.’”), quoting Heck, 512 U.S. at 489. Such 17 claims “necessarily imply the invalidity” of his conviction and continued incarceration. 18 Heck, 512 U.S. at 487. The Court takes judicial notice that Plaintiff has challenged, 19 unsuccessfully, his criminal conviction and sentence on more than one occasion by way 20 of petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254: Rodgers v. San 21 Diego County, etal., S.D. Cal. Civil Case No. 3:05-cv001814-BEN-BLM; Rodgers v. 22 Kernan, et al., S.D. Cal. Civil Case No. 3:06-cv-01384-L-POR. Both of those petitions 23 have been dismissed. 24 E. 25 While Plaintiff names the “Superior Court of San Diego” as a Defendant, the Court 26 will constme this as a claim against the unnamed judicial officer who imposed Plaintiffs 27 criminal sentence following his conviction. However, these claims are legally frivolous, Immune Defendants 28 8 3:16-cv-02864-BEN-JMA 1 for “[j Judges are absolutely immune from damage liability for acts performed in their 2 official capacities.” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). 3 III. Conclusion and Order 4 Good cause appearing, the Court: 5 1. 6 7 GRANTS Plaintiffs Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2); and 2. DISMISSES Plaintiffs Complaint for failing to state a claim and as 8 frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Because the 9 Court finds further amendment futile, leave to amend is DENIED. See Cahill v. Liberty 10 Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an 11 abuse of discretion where further amendment would be futile). 12 3. The Court further CERTIFIES that an IFP appeal from this Order of 13 dismissal would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). See 14 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 15 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if 16 appeal would not be frivolous). 17 The Clerk shall enter judgment and close the file. 18 IT IS SO ORDERED. 19 20 21 22 Dated: 2017 % ^iON. R0Ger ^Benitez Unitea StafesTMstrict Judge 23 24 25 26 27 28 9 3:16-cv-02864-BEN-JMA

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