(PC) DeBose v. Annin ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DWIGHT M. DEBOSE, No. 2:20-cv-0108 KJN P 12 Plaintiff, 13 v. ORDER TO SHOW CAUSE 14 J. WEISS, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 19 § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 This 20 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 21 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 22 Accordingly, the request to proceed in forma pauperis will be granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 24 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 1 On February 25, 2020, plaintiff refiled his complaint and request to proceed in forma pauperis 28 bearing his signatures. 1 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly 2 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account. 3 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 4 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 5 § 1915(b)(2). 6 As discussed below, plaintiff is ordered to show cause why this action is not barred by the 7 statute of limitations. 8 II. Screening Standards 9 The court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 11 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 12 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 13 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 14 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 15 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 16 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 17 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 18 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 19 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 20 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 21 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 22 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 23 1227. 24 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 25 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 26 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 27 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 28 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 1 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 2 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 3 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 4 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 5 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 6 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 7 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 8 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 9 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 10 III. Plaintiff’s Complaint 11 Plaintiff claims that on May 7, 2014, he was placed in administrative segregation (“ad 12 seg”) based on staff’s claim that they found a note plaintiff had written stating he was planning to 13 assault staff on Facility A at High Desert State Prison, despite plaintiff having had shoulder repair 14 surgery on May 2, 2014. While in ad seg, defendant Annin forced plaintiff to take a cellmate due 15 to threat of receiving a rules violation report (“RVR”) if plaintiff refused. The inmate plaintiff 16 was assigned challenged plaintiff to a fight and became very aggressive. Despite plaintiff’s 17 warning about the situation, defendants Peterson and Huynh just stood there, refusing to do 18 anything, and allowed plaintiff to be assaulted by his cellmate, allegedly in retaliation for the 19 above note. When questioned for the subsequent RVR, defendant Peterson claimed he relayed 20 plaintiff’s concerns about the cellmate to his supervisor, defendant Riley, who did nothing. 21 Plaintiff claims defendant Chandler did not give plaintiff a fair and unbiased hearing, refusing to 22 correct the injustice, and found plaintiff guilty of fighting, disregarding two reliable, confidential 23 sources. 24 Plaintiff claims that defendant Williams was tasked with reviewing the RVR hearing yet 25 failed to correct the due process violation. Defendant Associate Warden Peddicord, as chief 26 disciplinary officer, refused to protect plaintiff’s due process rights or ensure plaintiff had a fair 27 and unbiased hearing. 28 //// 1 Further, plaintiff claims that defendants Chief Deputy Warden St. Andre and L. Lopez 2 failed to credit the two confidential memos and find plaintiff was defending himself. Plaintiff 3 also alleges that defendants Foston and Voong failed to do their jobs and weigh the evidence and 4 find in plaintiff’s favor at the third level of review. 5 IV. Discussion 6 A. Was the Complaint Timely-Filed? 7 Plaintiff’s complaint is based on incidents that took place in 2014 and thus the complaint, 8 on its face, appears to be barred by the statute of limitations. 9 The Prison Litigation Reform Act (“PLRA”) obligates the court to “review before 10 docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil 11 action in which a prisoner seeks redress from a governmental entity or officer or employee of a 12 governmental entity.” See 28 U.S.C. § 1915A. Under this provision, the court may sua sponte 13 dismiss any prisoner complaint, or any portion thereof, which is frivolous, malicious, fails to state 14 a claim upon which relief may be granted, or which seeks damages from defendants who are 15 immune. Id.; Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000). “A claim may be dismissed 16 [for failing to state a claim] on the ground that it is barred by the applicable statute of limitations 17 when the running of the statute is apparent on the face of the complaint.” Von Saher v. Norton 18 Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (internal citation and 19 quotation marks omitted); see Belanus v. Clark, 796 F.3d 1021, 1024-27 (9th Cir. 2015) 20 (affirming dismissal of pro se complaint upon screening pursuant to 28 U.S.C. § 1915A, in part 21 because prisoner’s complaint, on its face, appeared to be time-barred), cert. denied, 137 S. Ct. 109 22 (2016). 23 Federal law determines when a claim accrues, and “[u]nder federal law, a claim accrues 24 when the plaintiff knows or should know of the injury that is the basis of the cause of action.” 25 Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (citation omitted); Maldonado v. Harris, 26 370 F.3d 945, 955 (9th Cir. 2004). Because section 1983 contains no specific statute of 27 limitations, federal courts should apply the forum state’s statute of limitations for personal injury 28 actions. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Maldonado, 370 F.3d at 954. 1 California’s statute of limitations for personal injury actions was extended to two years effective 2 January 1, 2003. Cal. Civ. Proc. Code § 335.1; Jones v. Blanas, 393 F.3d at 927; Maldonado, 370 3 F.3d at 954-55. California law also provides that when a litigant is incarcerated for a term of less 4 than life, the applicable limitations period is tolled for two years on grounds of “disability.” Cal. 5 Civ. Proc. Code § 352.1(a); Brooks v. Mercy Hosp., 1 Cal. App. 5th 1, 6-7 (2016) (tolling 6 provision construed “to mean that only those sentenced to life without the possibility of parole 7 should be excluded from the tolling provision.”).) The limitations period is also tolled while the 8 prisoner completes the mandatory exhaustion process. Brown v. Valoff, 422 F.3d 926. 942-43 9 (9th Cir. 2004). 10 Applying the additional two years for tolling due to his imprisonment, plaintiff had four 11 years to bring his claims against defendants named in connection with the May 7, 2014 incident. 12 Because plaintiff’s claims accrued on May 7, 2014, at the earliest, plaintiff had until Monday, 13 May 7, 2018, in which to file his civil rights action. The third level appeal decision issued on 14 June 15, 2015; more than four years have expired since that date. Similarly, plaintiff would have 15 had four years from the date of the hearing on the rules violation report in which to raise his due 16 process challenge. Because all of plaintiff’s claims are based on incidents that took place in 17 2014, such claims appear barred by the statute of limitations and must be dismissed. 18 B. Is Plaintiff Entitled to Equitable Tolling? 19 The court considers, sua sponte, whether plaintiff is entitled to equitable tolling. 20 California law requires a plaintiff to “meet three conditions to equitably toll a statute of 21 limitations: ‘(1) defendant must have had timely notice of the claim; (2) defendant must not be 22 prejudiced by being required to defend the otherwise barred claim; and (3) plaintiff's conduct 23 must have been reasonable and in good faith.’” Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 24 1999) (citation omitted). Equitable tolling is a judicially created doctrine “designed to prevent 25 unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute 26 of limitations -- timely notice to the defendant of the plaintiff's claims -- has been satisfied.” 27 Hopkins v. Kedzierski, 225 Cal. App. 4th 736, 746, 170 Cal. Rptr. 3d 551 (2014) (internal 28 quotation marks and citations omitted). Thus, equitable tolling is available under California law 1 | “to toll the statute of limitations on a claim during the period in which a plaintiff pursues another 2 || remedy for the harm that the plaintiff suffered.” Id. (citing Elkins v. Derby, 12 Cal. 3d 410, 414, 3 | 115 Cal. Rptr. 641, 525 P. 2d 81 (1974)). 4 Here, plaintiff fails to address the almost six-year delay in filing the instant action and was 5 | personally involved in the incidents at issue in his pleading. Nothing in his complaint or his 6 | exhibits suggest that he would be entitled to equitable tolling under the above standards. 7 | However, in an abundance of caution, plaintiff is ordered to show cause why this action should 8 | not be dismissed as time-barred, and to address the application of equitable tolling. 9 | V. Leave to Amend Futile 10 Because plaintiff's claims appear to be time-barred, granting plaintiff leave to amend 11 | would be futile. 12 In accordance with the above, IT IS HEREBY ORDERED that: 13 1. Plaintiffs request for leave to proceed in forma pauperis is granted. 14 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 15 | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 16 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 17 || Director of the California Department of Corrections and Rehabilitation filed concurrently 18 | herewith. 19 3. Within thirty days from the date of this order, plaintiff shall show cause why this action 20 | should not be dismissed as barred by the statute of limitations, and address the application of 21 | equitable tolling. Failure to respond to this order will result in the dismissal of this action. 22 | Dated: March 4, 2020 3 Aectl Aharon 24 KENDALL J. NE debo0108.0sc UNITED STATES MAGISTRATE JUDGE 25 26 27 28