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GAMBLE v. BOARD OF SUPERVISORS OF MONTEREY COUNTY

United States District Court, N.D. California


April 22, 2004.

ANTHONY GAMBLE, Plaintiff,
v.
BOARD OF SUPERVISORS OF MONTEREY COUNTY; et al., Defendants

The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge

JUDGMENT

The complaint is dismissed with prejudice for failure to state a claim upon which relief may be granted.

IT IS SO ORDERED AND ADJUDGED.

  [EDITORS' NOTE: THIS PAGE CONTAINED CERTIFICATE OF SERVICE] ORDER OF DISMISSAL

  Anthony Gamble, a parolee, filed this prose civil rights action under 42 U.S.C. § 1983 in which he complains about a personal injury and medical care he received in October 1997 while incarcerated at the Monterey County Jail. 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 forma 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 in or about October 1997 when he was injured and received allegedly inadequate medical care. He also alleges that he filed a state tort claim in 1998 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 six years after the cause of action accrued and thus was more than three 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 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.

  IT IS SO ORDERED.

20040422

© 1992-2004 VersusLaw Inc.



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