Joshua Blocker v. Joel Solis ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSHUA BLOCKER, ) NO. CV 20-11764-MWF (AGR) 12 ) Plaintiff, ) 13 ) ORDER TO SHOW CAUSE WHY v. ) COURT SHOULD NOT 14 ) RECOMMEND (1) DENIAL OF CORRECTIONAL OFFICER JOEL ) REQUEST TO PROCEED 15 SOLIS, et al., ) WITHOUT PREPAYMENT OF ) FILING FEES; AND (2) 16 Defendants. ) DISMISSAL OF COMPLAINT AS ) BARRED BY STATUTE OF 17 ) LIMITATIONS 18 The court orders Plaintiff to show cause on or before February 4, 2021, 19 why this court should not recommend dismissal of his complaint as barred by the 20 statute of limitations and denial of his request to proceed without prepayment of 21 filing fees. 22 23 24 25 26 27 28 1 I. 2 PROCEDURAL HISTORY 3 On December 23, 2020, Plaintiff, a state prisoner housed at California 4 Mens Colony (“CMC”), constructively filed a civil rights complaint under 42 U.S.C. 5 § 1983 alleging Eighth Amendment claims based on an incident on September 6 23, 2016. He names four correctional officers as defendants: J. Solis, J. Clark, R. 7 Chirinos, and J. Galapon. 8 II. 9 ALLEGATIONS OF COMPLAINT 10 The complaint stems from one incident on September 23, 2016. Defendant 11 Clark approached Plaintiff’s cell for phone sign-up. Plaintiff requested a 5:45 time 12 slot and went back to bed. Clark remained standing at the door. Plaintiff asked, 13 “Is there a problem?” Clark responded: “So you’re snitching now?” Clark spoke 14 loud enough so that other inmates could hear, which was dangerous. Plaintiff 15 started kicking the door and yelling that he was suicidal. When Plaintiff was 16 ignored, other inmates started yelling “mandown in Cell #130.” (Compl. at 5-5a.) 17 Defendant Galapon approached and asked what the problem was. Plaintiff 18 said he was suicidal and needed to speak to a doctor. Galapon ignored Plaintiff’s 19 request and went back to his seat. (Id. at 5a-5b.) 20 Plaintiff started kicking the door. Defendants Clark and Solis came to the 21 door and told Plaintiff to cuff up. Fearing for his safety because of Clark’s prior 22 comments and previous interactions with him, Plaintiff refused and told them to 23 call a sergeant or a psych tech to witness him being cuffed up and taken out of 24 his cell. Clark came in to the cell and tried to grab Plaintiff’s left wrist. Plaintiff 25 pulled free and put his hands behind his back. Both Clark and Solis rushed into 26 the cell. Plaintiff retreated, tripped over the toilet and landed towards the bottom 27 bunk. Clark landed on top of him and started punching his head, ribs and back. 28 Solis pepper sprayed him. Plaintiff was placed in handcuffs. (Id. at 5b-5c.) 1 Defendant Chirinos entered the cell and asked Solis about the blood on 2 him. Solis lied that Plaintiff punched him. Chirinos started kicking, kneeing and 3 punching Plaintiff while he was in restraints. The assault stopped when other 4 officers arrived. Officers carried him out and dropped him on the dayroom floor. 5 When inmates made a commotion, the officers took him out to building two, put 6 him in a wheelchair and took him to a holding cell without decontamination or 7 medical evaluation. Plaintiff was unable to breathe from the pepper spray and 8 went “man down” again. Psych tech Chavez brought Plaintiff’s inhaler and 9 Plaintiff was decontaminated. (Id. at 5c-5d.) 10 Plaintiff alleges two claims for excessive force and deliberate indifference to 11 serious medical needs in violation of the Eighth Amendment. (Id. at 5.) He seeks 12 damages and punitive damages. (Id. at 6.) 13 III. 14 STATUTE OF LIMITATIONS 15 It appears that Plaintiff’s suit is barred by the statute of limitations on the 16 face of the complaint. Von Saher v. Norton Simon Museum of Art, 592 F.3d 954, 17 969 (9th Cir. 2010). 18 Federal courts apply the forum state’s analogous statute of limitations to § 19 1983 claims. Wallace v. Kato, 549 U.S. 384, 387 (2007); Fink v. Shedler, 192 20 F.3d 911, 914 (9th Cir. 1999). In California, the applicable limitations period is 21 two years. Cal. Civ. Proc. Code § 335.1. Federal courts also apply the forum 22 state’s law regarding tolling, including equitable tolling, when not inconsistent with 23 federal law. Fink, 192 F.3d at 914. 24 Federal law, however, governs when a claim accrues. Id.; Wallace, 549 25 U.S. at 388. “Under federal law, a cause of action accrues when the plaintiff 26 knows or has reason to know of the injury that is the basis of the action.” Belanus 27 v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015). Thus, an action ordinarily accrues 28 on the date of the injury. Id. “‘The cause of action accrues even though the full 1 extent of the injury is not then known or predictable.” Wallace, 549 U.S. at 391 2 (citation omitted). 3 Plaintiff's complaint arises from the incident on September 23, 2016. Any § 4 1983 claim arising from this incident accrued on that date because Plaintiff was 5 aware of his injuries at that time. See Belanus, 796 F.3d at 1025. The statute of 6 limitations expired two years later, on September 23, 2018. Even assuming 7 Plaintiff has been incarcerated from September 23, 2016 through the filing of the 8 complaint for a term less than life, and is therefore entitled to two years of 9 statutory tolling under Cal. Civ. Proc. Code § 352.1(a), the statute of limitations 10 expired on September 23, 2020. 11 Accordingly, Plaintiff's complaint is barred by the statute of limitations. The 12 complaint does not indicate any basis for tolling the statute of limitations. 13 IV. 14 ORDER 15 For the foregoing reasons, IT IS ORDERED THAT Plaintiff shall show 16 cause in writing, by no later than February 4, 2021, why the court should not 17 recommend that the complaint be dismissed as barred by the statute of 18 limitations and that Plaintiff's request to proceed without prepayment of fees be 19 denied. 20 If Plaintiff fails to file a response to this order to show cause on or before 21 February 4, 2021, this court may recommend that the complaint be dismissed as 22 barred by the statute of limitations and Plaintiff's request to proceed without 23 prepayment of fees be denied. 24 25 26 DATED: January 4, 2021 Ulivi A unboyy 27 United States Wao, ‘strate Sadge 28