Adams v. Garcia

Filing 14

ORDER: 1) Granting 9 Motion to Proceed in Forma Pauperis and 2) Dismissing Civil Action for Failing to State a Claim Pursuant to U.S.C. 28 U.S.C. § 1915(e)(2) and § 1915A(b). The Secretary CDCR, or his designee, is ordered to collect fr om prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the C lerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Michael M. Anello on 6/23/2017. (A copy of this Order was served on Scott Kernan, Secretary) (All non-registered users served via U.S. Mail Service)(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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vs.

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ORDER:

Plaintiff,

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Case No.: 3:17-cv-00433-MMA-AGS

EZRA JOHN ADAMS,
CDCR #H-27409,

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[Doc. No. 9]

LEROY GARCIA, Ramona Sheriff’s
Department,

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AND

Defendant.

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

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EZRA JOHN ADAMS (“Plaintiff”), proceeding pro se and currently incarcerated

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at the California Health Care Facility (“CHCF”) in Stockton, California, filed this civil

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action pursuant to 42 U.S.C. § 1983 in the Northern District of California in December

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2016 (Doc. No. 1).

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Because Plaintiff’s Complaint raises claims regarding to property that was seized

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during his 1988 arrest and subsequent criminal prosecution in San Diego Superior Court,

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and because the sole Defendant is alleged to have been employed by the San Diego
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3:17-cv-00433-MMA-AGS

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County Sheriff’s Department, United States Magistrate Judge Nandor J. Vadas found the

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case was filed in the improper venue, and transferred it to the Southern District of

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California pursuant to 28 U.S.C. § 1391(b) and § 1406(a) (Doc. No. 11). Judge Vadas did

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not rule on Plaintiff’s pending Motion to Proceed In Forma Pauperis (Doc. No. 9) prior to

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transfer; nor did he conduct a preliminary screening of Plaintiff’s Complaint pursuant to

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28 U.S.C. § 1915(e)(2) and § 1915A.

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I.

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Motion to Proceed In Forma Pauperis
All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed

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IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v.

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Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182,

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1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28

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U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for ... the

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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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trust account statement, the Court assesses an initial payment of 20% of (a) the average

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

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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.

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balance in the account for the past six months, whichever is greater, unless the prisoner

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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

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custody of the prisoner then collects subsequent payments, assessed at 20% of the

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preceding month’s income, in any month in which his account exceeds $10, and forwards

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those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);

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Bruce, 136 S. Ct. at 629.

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In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate

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Statement Report as well as a prison certificate certified by a trust account official at

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CHCF. See Doc. No. 9 at 5-8; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews,

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398 F.3d at 1119. These statements show that while Plaintiff sustained an average

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monthly balance of $11.67, he had no monthly deposits to his account over the 6-month

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period immediately preceding the filing of his Complaint, he had an available balance of

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zero at the time of filing. See Doc. No. 9 at 5, 7. Thus, the Court assesses Plaintiff’s

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initial partial filing fee to be $2.33 pursuant to 28 U.S.C. § 1915(b)(1), but acknowledges

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he may be unable to pay even that minimal initial fee at this time. See 28 U.S.C.

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§ 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a

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civil action or appealing a civil action or criminal judgment for the reason that the

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prisoner has no assets and no means by which to pay the initial partial filing fee.”);

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Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4)

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acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a

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“failure to pay ... due to the lack of funds available to him when payment is ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc No. 9),

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declines to exact any initial filing fee because his prison certificate indicates he may have

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“no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California

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Department of Corrections and Rehabilitation (“CDCR”), or his designee, to instead

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collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and

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forward them to the Clerk of the Court pursuant to the installment payment provisions set

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forth in 28 U.S.C. § 1915(b)(1). See id.
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II.

Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A

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A.

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Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

Standard of Review

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answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

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statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

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who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

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the targets of frivolous or malicious suits need not bear the expense of responding.’”

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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted.)

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556

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U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] ... a

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context-specific task that requires the reviewing court to draw on its judicial experience

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and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the

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defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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///
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B.

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Plaintiff contends that Defendant Leroy Garcia, a Sheriff employed by the County

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of San Diego, conducted an “illegal” search and seizure of his personal property without

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a warrant, participated in his “false arrest,” fabricated and/or “orchestrated” false,

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defamatory, and misleading evidence against him, and “vandalized” his property in

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Ramona, California, while acting “under color of authority” “on or about November 15,

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1988.” (Doc. No. 1 at 3, 5-7.) Plaintiff seeks “five million dollars in new money,” to

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“reverse the conviction,” and asks to be “immediately discharged and returned from

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custody.” (Id. at 3-4; Doc. No. 1-1 at 7.)

Plaintiff’s Allegations

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C.

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Plaintiff’s claims first arose “on or about November 15, 1988.” (Doc. No. 1 at 2, 3,

Statute of Limitations

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5) “A claim may be dismissed [for failing to state a claim] on the ground that it is barred

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by the applicable statute of limitations only when ‘the running of the statute is apparent

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on the face of the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena,

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592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d

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992, 997 (9th Cir. 2006)). “‘A complaint cannot be dismissed unless it appears beyond

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doubt that the plaintiff can prove no set of facts that would establish the timeliness of the

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claim.’” Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995));

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see also Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th Cir. 1993) (where the

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running of the statute of limitations is apparent on the face of a complaint, dismissal for

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failure to state a claim is proper, so long as Plaintiff is provided an opportunity to amend

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in order to allege facts which, if proved, might support tolling); see also Tahoe-Sierra

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Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir. 2000)

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(court may raise the defense of statute of limitations sua sponte).

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Because section 1983 contains no specific statute of limitation, federal courts apply

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the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393

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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). Before 2003, California’s statute of
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limitations was one year. Jones, 393 F.3d at 927. Effective January 1, 2003, the

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

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The law of the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394

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(2007) (citing Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927

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(where the federal court borrows the state statute of limitation, the federal court also

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borrows all applicable provisions for tolling the limitations period found in state law).

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Under California law, the statute of limitations for prisoners serving less than a life

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sentence is tolled for two years. CAL. CIV. PROC. CODE § 352.1(a); Johnson v. California,

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207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S. 499 (2005).

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Accordingly, the effective statute of limitations for most California prisoners is three

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years for claims accruing before January 1, 2003 (one year limitations period plus two

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year statutory tolling), and four years for claims accruing thereafter (two year limitations

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period plus two years statutory tolling).

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

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

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Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543-44 (federal law governs when a

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

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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. Put another way, “[u]nder

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federal law, a claim accrues when the plaintiff knows or has reason to know of the injury

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which is the basis of the action.” Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174

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F.3d 987, 991 (9th Cir. 1999).

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In this case, the “wrongful acts” alleged to have caused Plaintiff harm occurred

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more than 28 years before Plaintiff filed his Complaint in this action, and far outside

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California’s statute of limitations—even including all presumed periods of tolling

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provided by statute, or pending the exhaustion of any administrative remedies. Wallace,

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591 U.S. at 391; see also Maldonado, 370 F.3d at 955; CAL. CODE CIV. PROC. § 335.1

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(tolling statute of limitations “for a maximum of 2 years” during a prisoner’s
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incarceration); Jones, 393 F.3d at 927; Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005)

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(finding that “the applicable statute of limitations must be tolled while a prisoner

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completes the mandatory exhaustion process” Defendant Garcia falsely arrested him,

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fabricated false and misleading evidence against him, searched his motor home, and

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seized various items of his personal property, including fishing equipment, household

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furnishings, a movie camera, guns, bows and arrows, rare hunting knives, a sword, tools,

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diving and camping equipment, clothing, and other “odds and ends,” following his arrest

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in November 1988. (Doc. No. 1-1 at 3-7.) Therefore, Plaintiff had “reason to know” of

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his injury more than two decades ago, yet did not file this case until December 19,

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2016—well after the limitations period elapsed. See Maldonado, 370 F.3d at 955.

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Finally, Plaintiff’s claims could be considered timely if, in his Complaint, he

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alleged facts sufficient to show the limitations period may be equitably tolled. See

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Cervantes, 5 F.3d at 1276-77. Generally, federal courts also apply the forum state’s law

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regarding equitable tolling. Fink, 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d

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372, 374 (9th Cir.1988). Under California law, however, Plaintiff must meet three

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conditions to equitably toll the statute of limitations: (1) he must have diligently pursued

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

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

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

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

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As currently pleaded, however, the Court finds Plaintiff has failed to plead any

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facts which, if proved, would support any plausible claim for equitable tolling. See

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Cervantes, 5 F.3d at 1277; Iqbal, 556 U.S. at 679. Accordingly, the Court finds Plaintiff’s

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claims against Defendant Garcia are barred by the statute of limitations, and his entire

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Complaint must be dismissed for failing to state a claim upon which section 1983 relief

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may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 1915A(b)(1); Lopez, 203 F.3d at

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1126-27; Rhodes, 621 F.3d at 1004.

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D.

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Plaintiff also seeks to “reverse his conviction” in San Diego Superior Court

Validity of Conviction

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Criminal Case No. CR101501, and to be “released from custody” as a result of Defendant

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Garcia’s actions. (Doc. No. 1 at 3-4; Doc. No. 1-2 at 2.) Thus, even if his claims were

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timely, he cannot proceed pursuant to 42 U.S.C. § 1983, for “[s]uits challenging the

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validity of [a] prisoner’s continued incarceration lie within ‘the heart of habeas corpus.’”

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Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003), quoting Preiser, 411 U.S. at 489-

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99 (holding that a writ of habeas corpus is “explicitly and historically designed” to

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provide a state prisoner with the “exclusive” means to “attack the validity of his

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confinement” in federal court). “‘[A] § 1983 action is a proper remedy for a state prisoner

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who is making a constitutional challenge to the conditions of his prison life, but not to the

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fact or length of his custody.’” Id.; see also Nettles v. Grounds, 830 F.3d 922, 928 (9th

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Cir. 2016) (en banc) (“[C]laims … which would … result[] in immediate release if

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successful, f[a]ll within the core of habeas corpus and therefore [must] be brought, if at

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all, in habeas.”) (citing Preiser, 411 U.S. at 487), cert. denied, 137 S. Ct. 635 (No. 16-

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6556) (Jan. 9, 2017).

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E.

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Finally, while the Court would typically grant Plaintiff leave to amend in light of

Leave to Amend

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his pro se status, it concludes that doing so under the circumstances presented by his

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pleadings would be futile. See Lopez, 203 F.3d at 1127; Schmier v. U.S. Court of Appeals

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for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing “[f]utility of

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amendment” as a proper basis for dismissal without leave to amend).

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Amendment is futile because even if Plaintiff could somehow allege facts to show

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his claims against Defendant Garcia were timely, and further amend his pleading in such

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a way so as to seek only damages and allege constitutional violations that would not

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“necessarily” imply the invalidity of his conviction, or “affect the duration of time to be

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served,” he still could not proceed pursuant to 42 U.S.C. § 1983 because previous

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attempts at invalidating his conviction have all proven unavailing. See Nettles, 830 F.3d
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at 928-29 (noting that plaintiff may not bring a § 1983 action that “‘necessarily require[s]

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[him] to prove the unlawfulness of his conviction’” unless he can “first … prove that the

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conviction … was eliminated, including ‘by a federal court’s issuance of a writ of habeas

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corpus.’”) (quoting Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)).

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A court may take judicial notice of its own records, see Molus v. Swan, Civil Case

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No. 3:05-cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing

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United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v.

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Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take

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notice of proceedings in other courts, both within and without the federal judicial system,

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if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508

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F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803

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n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council

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v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

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Thus, the Court takes judicial notice of Adams v. Evans, et al., Civil Case No.

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3:09-cv-01123-BEN-RBB (S. D. Cal. 2009), a habeas corpus petition filed by Plaintiff

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pursuant to 28 U.S.C. § 2254 in 2009, and seeking to challenge the constitutional validity

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of the same state court conviction at issue in this case: San Diego Superior Court Case

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No. CR101501. This petition too, filed approximately 20 years after Plaintiff was

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convicted, was dismissed as untimely. See id. Doc. Nos. 1, 12, 13. The Court also takes

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judicial notice of docket proceedings before the California Court of Appeals, District 4,

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Div.1, in In re Ezra John Adams, D053086, in which Plaintiff filed a state habeas petition

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challenging his conviction in CR101501. This petition too was denied. See

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http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=41&doc_id=1369135

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&doc_no=D053086 (last visited June 21, 2017).

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Therefore, because these collateral proceedings show Plaintiff cannot amend his

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pleading in this case to allege the additional facts required to show either that his claims

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are timely, or that the underlying conviction which forms the basis of his § 1983 suit has

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already been invalidated, the Court finds amendment would be futile. See Lopez, 203
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F.3d at 1127; Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (noting that leave

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to amend is not required if it is “absolutely clear that the deficiencies of the complaint

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could not be cured by amendment.”) (internal citations omitted).

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III.

Conclusion and Order

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For all the reasons discussed, the Court:

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1)

GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 9);

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2)

DIRECTS the Secretary of the CDCR, or his designee, to collect from

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

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

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preceding month’s income and forwarding those payments to the Clerk of the Court each

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time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

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PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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ASSIGNED TO THIS ACTION;

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3)

DIRECTS the Clerk of the Court to serve a copy of this Order on Scott

Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001;
4)

DISMISSES this civil action without leave to amend based on Plaintiff’s

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failure to state a claim upon which relief can be granted and pursuant to 28 U.S.C.

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§§ 1915(e)(2) and 1915A(b)(1); and

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5)

CERTIFIES that an IFP appeal from this Order would be not taken in good

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faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438,

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445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is

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permitted to proceed IFP on appeal only if appeal would not be frivolous).

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The Clerk of Court is instructed to enter judgment accordingly and close the case.

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IT IS SO ORDERED.

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DATE: June 23, 2017

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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