The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge
The complaint is dismissed with prejudice for failure to state a
claim upon which relief may be granted.
IT IS SO ORDERED AND ADJUDGED. ORDER OF DISMISSAL
Anthony Gamble, a parolee, filed this pro se civil rights action under
42 U.S.C. § 1983 in which he complains about a personal injury he
sustained in 1996 while incarcerated and working as a janitor in San
Quentin State Prison. He seeks leave to proceed in forma pauperis and
requests that counsel be appointed to represent him. The court now
reviews Gamble's complaint pursuant to 28 U.S.C. § 1915.
The court must dismiss an in formal pauperis action at any time if the
court determines that the allegation of poverty is untrue, the action is
frivolous or malicious, the action fails to state a claim upon which
relief may be granted, or seeks monetary relief against a defendant
immune from such relief. See 28 U.S.C. § 1915(e). Pro se pleadings must
be liberally construed. See Balistreri v. Pacifica Police Dep't
901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two
elements: (1) that a right secured by the Constitution or laws of the
United States was violated and (2) that the violation was committed by a
person acting under the color of state law. See West v. Atkins. 487 U.S. 42,
48 (1988). The complaint has a fatal defect: the claim therein is time-barred The
appropriate limitations period for a § 1983 action is that of the forum
state's statute of limitations for personal injury torts. See Wilson v.
Garcia, 471 U.S. 261, 276 (1985); Elliott v. City of Union City,
25 F.3d 800, 802 (9th Cir. 1994). Because California has multiple
statutes of limitations for different torts, the court borrows the
general or residual statute for personal injury actions to use for a §
1983 action, which is now a two-year limitations period. See Cal. Code
Civ. Proc. § 335.1. When Gamble's cause of action accrued, the
limitations period was one year. The court also must give effect to a
state's tolling provisions. See generally Hardin v. Straub. 490 U.S. 536,
543-44 (1989). California Civil Procedure Code section 352.1 tolls the
statute of limitations when a person is "imprisoned on a criminal
charge, or in execution under the sentence of a criminal court for a term
of less than for life." See Cal. Civ. Proc. Code § 352.1(a). The tolling
is not indefinite, however, the disability of imprisonment delays the
accrual of the cause of action for a maximum of two years. See id.
The one-year limitations period applies to Gamble's case and he would
receive at most two more years of tolling for the disability of
imprisonment under California Code of Civil Procedure § 352.1. His cause
of action (if any) accrued on November 4, 1996 when he was injured. He
also alleges that he filed a state tort claim in 1997 which was denied in
1998 and has attached to his complaint copies of letters showing his
efforts to retain counsel to represent him in 1998. His complaint in this
action was not filed until January 11, 2004, more than seven years after
the cause of action accrued and thus was more than four years too late.
The claims therein are time-barred and the statute of limitations defense
is complete and obvious on the face of the complaint and the court's own
records. See Franklin v. Murphy 745 F.2d 1221, 1228-30 (9th Cir. 1984)
(sua sponte dismissal under 28 U.S.C. § 1915): see also Pisciotta v.
Teledyne Industries. Inc., 91 F.3d 1326, 1331 (9th Cir. 1996) (court may
grant a motion to dismiss based on the running of the statute of
limitations "only if the assertions in the complaint, read with the
required liberality, would not permit the plaintiff to prove that the
statute was tolled"). The complaint also indicates that plaintiff already may have litigated
his claim in state court. See Complaint, p. 2, response to question D.3.
However, the court will not require further information to determine
whether this is a case in which the doctrines of claim and issue
preclusion should apply because the untimely nature of the complaint is an
independent fatal defect in the complaint
The complaint is dismissed with prejudice for failure to state a claim
upon which relief may be granted.
In light of the dismissal of the complaint, the motion for appointment
of counsel is DENIED. (Docket #2.) Gamble's in forma pauperis application
is DENIED. (Docket #3.)
The clerk shall close the file.
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