United States District Court, S.D. California
November 2, 2005.
STEVEN DERRICK IRVIN, Plaintiff,
DENNIS KITTERMAN, et al., Defendants.
The opinion of the court was delivered by: BARBARA MAJOR, Magistrate Judge
REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANTS' 12
(B) (6) MOTION TO DISMISS AND DENYING DEFENDANTS' 12 (B)
(UNENUMERATED) MOTION TO DISMISS
[Doc. No. 20]
On July 25, 2005, Defendants B Koen and Dennis Kitterman
("Defendants") filed a motion to dismiss [Doc. No. 20]. Pursuant
to the Court's briefing schedule [Doc. No. 25], Plaintiff Steven
Derrick Irvin timely opposed the motion on August 18, 2005.
Defendants did not file a reply. As set forth in the Court's July
27, 2005 briefing schedule, the Court took the motion under
submission, pursuant to Local Rule 7.1 (d) (1), upon completion
of the briefing.
On May 4, 2004, Plaintiff, proceeding pro se and in forma
pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983.
Plaintiff is currently civilly detained under California's
Sexually Violent Predators Act ("SVPA") in Los Angeles County
Jail's Twin Towers Correctional Facility. In his Complaint, Plaintiff raised various claims against ten
defendants relating to his classification as a Sexually Violent
By order dated June 1, 2004, the district judge in this case
granted Plaintiff's motion to proceed in forma pauperis but
dismissed the Complaint without prejudice for failure to state a
claim pursuant to 28 U.S.C. § 1915 (e) (2) (b) (ii). Doc. No. 3.
On June 22, 2004, Plaintiff moved for reconsideration of the
court's order. Doc. No. 5. The court denied his request without
prejudice and allowed Plaintiff until October 1, 2004 to file a
first amended complaint. Doc. No. 7.
On September 30, 2004, Plaintiff filed a First Amended
Complaint ("FAC"). Doc. No. 8. By order dated January 13, 2005,
the district judge dismissed all claims in the FAC against all
Defendants without prejudice pursuant to 28 U.S.C. § 1915 (e) (2)
with the exception of Plaintiff's retaliation claim against
Defendants Kitterman, Koen, and Sanders. Doc. No. 9. The district
judge granted Plaintiff forty-five days to either (1) file a
second amended complaint curing the deficiencies in the FAC or
(2) request that the court direct the United States Marshal to
serve a copy of the FAC, as limited by the order. Id. In a
request dated February 10, 2005, Plaintiff opted to proceed with
the retaliation claim against Defendants Kitterman, Koen, and
Sanders, as set forth in his FAC. Doc. No. 13. Defendants
Kitterman and Koen waived service. Doc. Nos. 17, 19. To date, the
Marshal has been unable to effect service on Defendant Sanders.
See Doc. Nos. 18, 27 (notices regarding unsuccessful attempts
to service Defendant Sanders).
On July 25, 2005, Defendants Kitterman and Koen jointly filed a
motion to dismiss the FAC pursuant to Rule 12 (b) of the Federal
Rule of Civil Procedure. Specifically, Defendants moved to
dismiss the FAC as untimely pursuant to Rule 12 (b) (6) and as
unexhausted pursuant to Rule 12 (b) (unenumerated). As set forth above, Plaintiff timely
opposed the motion and the Court took the matter under
Plaintiff sets forth the following allegations in his FAC:
Plaintiff was incarcerated in Calipatria State Prison from at
least November of 1999 through February of 2000. FAC at 7, 26. He
was scheduled to be released from prison on February 17, 2000.
Id. at 7, Ex. B. While in prison, Plaintiff instituted a civil
rights suit in the United States District Court for the Eastern
District of California against various California Department of
Corrections employees (Irvin v. Khoury, No. CIV-S-92-1656 FCD
(GGH)). Id. at 7. During the course of that litigation,
Plaintiff refused to sign a settlement agreement. Id.
On November 23, 1999, R. Delgado, a Correctional Counselor I,
reviewed Plaintiff's central file to determine whether Plaintiff
met the criteria to be designated a sexually violent predator
("SVP") as defined in California Welfare and Institutions Code §
6600 et seq. Id. at 7. Allegedly in retaliation for
Plaintiff's refusal to sign the settlement agreement in Irvin v.
Khoury, Defendant B. Koen, a Correctional Counselor II, referred
Plaintiff to the Board of Prison Terms as a potential SVP on
December 14, 1999. Id. at 7, Ex. B. On or before February 17,
2000, Defendant Kitterman, the Calipatria State Prison Litigation
Coordinator, informed Plaintiff that the SVP proceedings would be
dropped and Plaintiff would be released from custody if Plaintiff
signed the settlement agreement. Id. at 9.
Plaintiff refused to sign the settlement agreement, and SVP
proceedings were initiated. Id. at 7-8. As a result, the
Department of Corrections did not parole Plaintiff on February
17, 2000. Rather, Defendant Sanders placed an allegedly
"unauthorized 72 hour hold" on Plaintiff pursuant to Title 15 of the California Code of
Regulations, Section 2600.1, even though Sanders knew that
California Welfare & Institutions Code § 6600 et seq. did not
authorize the parole hold. Id. at 9, Ex. H. The hold is dated
February 14, 2000, and states "hold effective 2/17/00." Id.,
Ex. H. On February 23, 2000, Plaintiff appeared for what he
describes as a "mock" probable cause hearing. Id. at 10.
Following the SVP probable cause hearing, Defendant Kitterman and
the deputy attorney general allegedly directed the Board of
Prison Terms Commissioner to place a forty-five day hold on
Plaintiff's release and backdate the new hold to February 17,
2000. Id. at 11.
Plaintiff claims that sometime after February 17, 2000, Koen
and Sanders fabricated the chronological history in Plaintiff's
central prison file in order to hide the fact that Plaintiff had
been illegally held beyond his release date. Id. at 12-13. He
alleges that the chronological history was altered to falsely
state that probable cause was found on February 17, 2000 and to
falsely indicate that the seventy-two hour hold was placed
pursuant to California Welfare & Institutions Code § 6600 et
seq. rather than pursuant to section 2600.1 of Title 15 of the
California Code of Regulations. Id. at 13. Plaintiff was
transferred to Atascadero State Hospital on March 17, 2005, and
was then transferred again to Los Angeles County's Twin Towers
Correctional Facility on March 29, 2000. Id. at 14-15.
STANDARD OF REVIEW
A Rule 12 (b) (6) motion tests the legal sufficiency of a
claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "A
court may dismiss a complaint only if it is clear that no relief
could be granted under any set of facts that could be proved
consistent with the allegations." Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984));
Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir.
1996). In deciding such a motion, the court accepts as true all
material factual allegations of the complaint, including all
reasonable inferences to be drawn from them, and construes them
in the light most favorable to the non-moving party. Rhodes v.
Robinson, 408 F.3d 559, 563 n. 1 (9th Cir. 2005). Dismissal is
proper only where the complaint lacks a cognizable legal theory
or fails to allege facts sufficient to support a cognizable legal
theory. Navarro, 250 F.3d at 732 (citing Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)).
In addition, when resolving a motion to dismiss for failure to
state a claim, the court generally may not consider materials
outside the pleadings. Schneider v. California Dep't of
Corrections, 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998). "The
focus of any Rule 12 (b) (6) dismissal . . . is the complaint."
Id. However, a court may consider documents attached to the
complaint or on which the complaint specifically relies when no
party questions the authenticity of those documents. Parrino v.
FHP, Inc., 146 F.3d 699, 705-706 (9th Cir. 1998)).
Finally, where a plaintiff appears in propria persona in a
civil rights case, the Court must also be careful to construe the
pleadings liberally and afford plaintiff any benefit of the
doubt. Morrison v. Hall, 261 F.3d 896, 899 n. 2 (9th Cir. 2001)
(citing Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621,
623 (9th Cir. 1988)). The rule of liberal construction is
"particularly important in civil rights cases." Ferdik v.
Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal
interpretation to a pro se civil rights complaint, however, a
court may not "supply essential elements of the claim that were
not initially pled." Ivey v. Bd. of Regents of the Univ. of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations
of official participation in civil rights violations are not
sufficient to withstand a motion to dismiss." Id.
Defendants move to dismiss the FAC on the grounds that the
statute of limitations has expired and Plaintiff failed to
exhaust his administrative remedies. Defs.' Mem. at 3-7.
Plaintiff opposes the motion, arguing that the statute of
limitations should be equitably tolled and that, as a civil
detainee, he is not required to exhaust administrative remedies
before seeking relief pursuant to 42 U.S.C. § 1983. Pl.'s Opp'n
I. Statute of Limitations and Equitable Tolling
A. The Applicable Statute of Limitations
Actions predicated upon § 1983 are governed by the forum
state's statute of limitations for personal injury actions. See
Wilson v. Garcia, 471 U.S. 261, 269 (1985); Azer v. Connell,
306 F.3d 930, 935 (9th Cir. 2002). Effective January 1, 2003, the
California legislature revised the relevant statute of
limitations for personal injury actions from one to two years.
See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004);
Cal. Civ. Proc. § 335.1 (West Supp. 2004).
Defendants contend, however, that former California Code of
Civil Procedure § 340 (3), a one-year statute of limitations,
applies to all claims in this case. Defs.' Mem. at 4. Defendants'
analysis is correct in this respect. Specifically, because
California law instructs that "an extension of a statute of
limitations will not apply to claims already barred under the
prior statute of limitations unless the Legislature explicitly
provides otherwise," and because the Legislature opted only to
apply the extension retroactively to September 11, 2001 terrorist
attack victims, the extension is inapplicable to Plaintiff's claims. Maldonado, 370 F.3d at 955. Consequently, California
Code of Civil Procedure § 340(3) is properly applied in this
B. Accrual of Plaintiff's Claims
Although state law determines the length of the limitations
period, "federal law determines when a civil rights claim
accrues." Morales v. City of Los Angeles, 214 F.3d 1151,
1153-54 (9th Cir. 2000). "Under federal law, a claim accrues when
the plaintiff knows or has reason to know of the injury which is
the basis of the action." Knox v. Davis, 260 F.3d 1009, 1013
(9th Cir. 2001) (quoting TwoRivers v. Lewis, 174 F.3d 987, 992
(9th Cir. 1999)). In the instant case, Defendants opine that
Plaintiff's claims accrued on or about December 14, 1999, the
date on which Defendant Koen allegedly referred Plaintiff to the
Board of Prison Terms as a potential SVP in retaliation for
Plaintiff's refusal to sign a settlement agreement in his Irvin
v. Khoury lawsuit. Defs.' Mem. at 5. Plaintiff does not oppose
Defendants' contention that Plaintiff's claims accrued on or
about December 1999. Pl.'s Opp'n at 4. At any rate, the latest
possible date on which Plaintiff knew or had reason to know of
the injury upon which this action is based is March 29, 2000, the
date on which Plaintiff was transferred to Los Angeles County's
Twin Towers Correctional Facility as a SVP civil detainee. See
FAC at 15, 21-22. Thus, for purposes of this motion, this Court
will use March 29, 2000 as the date Plaintiff's claims accrued.
Accordingly, Plaintiff's retaliation claims, having accrued no later than March 29, 2000 and not having been first plead until
May 4, 2004, are rightfully barred by the applicable one-year
statute of limitations. Before recommending this action's
dismissal on this basis, however, this Court must analyze whether
equitable tolling is appropriate in this case. See Stoll v.
Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999) (noting
circumstances in which equitable tolling may be appropriately
C. Equitable Tolling
As with statutes of limitation, federal courts apply the forum
state's law with regard to equitable tolling, when not
inconsistent with federal law. Jones v. Blanas, 393 F.3d 918,
927 (9th Cir. 2004). The purpose of the equitable tolling
doctrine "is to soften the harsh impact of technical rules which
might otherwise prevent a good faith litigant from having a day
in court." Daviton v. Columbia/HCA Healthcare Corp.,
241 F.3d 1131, 1137 (9th Cir. 2001) (en banc) (quoting Addison v.
State, 21 Cal.3d 313, 319 (Cal. 1978) (internal quotation marks
omitted)). Thus, California courts apply equitable tolling "to
prevent the unjust technical forfeiture of causes of action,
where the defendant would suffer no prejudice." Lantzy v. Centex
Homes, 31 Cal.4th 363, 370 (Cal. 2003).
Under California's prisoner tolling provision, a statute of
limitations may be tolled for up to two years for a plaintiff who
is "imprisoned on a criminal charge, or in execution under the
sentence of a criminal court for a term less than for life." Cal.
Civ. Proc. Code § 352.1 (West Supp. 2004). This tolling provision
is applied in addition to the statute of limitations applicable
to California tort claims. Id.
Defendants correctly point out that the literal language of the
tolling provision does not cover Plaintiff, a civil detainee.
However, in suggesting that Plaintiff's status as a civil detainee
disqualifies him from receiving the benefit of equitable tolling,
Defendants mischaracterize the Ninth Circuit's Jones holding.
In Jones, the Ninth Circuit explicitly held that California's
equitable tolling doctrine does toll the statute of limitations
for a claim asserted by a continuously confined civil detainee
who has pursued his claim in good faith, reasoning that:
To deny [a civil detainee] the same benefit that
California's disability tolling provision affords to
his criminally confined cellmates would yield the
arbitrary result that two individuals housed in the
same penal facility under the same or similar
conditions would have differing access to the courts
based solely on a difference in label.
Jones, 393 F.3d at 929-30.
Applying the rule laid out in Jones, Plaintiff is entitled to
equitable tolling of his claims to the same extent as if he were
imprisoned on a criminal charge. Thus, pursuant to Cal. Civ.
Proc. Code § 352.1, Plaintiff's claims may be equitably tolled up
to two years.*fn2 Using March 29, 2000 as the date of
accrual, the statute of limitations expired when Plaintiff did
not file a complaint by March 29, 2001. California's prisoner
tolling provision could have provided Plaintiff an additional two
years (until March 29, 2003) in which to file a complaint. But
Plaintiff did not file his original complaint in this case until
May 4, 2004, over a year later.*fn3 Thus, even were this
Court to find this action appropriate for equitable tolling, the
benefit of equitable tolling cannot save Plaintiff's
D. Continuing Violation Doctrine
To save his FAC, notwithstanding its untimeliness under the
applicable statute of limitations and equitable tolling
provisions, Plaintiff contends in his FAC that the continuing
violation doctrine applies, arguing that Plaintiff has properly
alleged: (1) a series of related acts, one or more of them
falling within the limitations period, and (2) a systematic
policy or practice of constitutional deprivation. FAC at 20.
"The continuing violation theory applies to § 1983 actions,
allowing a plaintiff to seek relief for events outside of the
limitations period." Knox v. Davis, 260 F.3d 1009, 1013 (9th
Cir. 2001) (internal citation omitted). Under the continuing
violation doctrine, each violation alleged is actionable only if
it took place within the applicable limitations period, unless
Plaintiff properly alleges that earlier violations were part of a
"continuing violation" which persisted into the limitations
period. See R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114
(2002) ("Morgan"). To invoke the continuing violation doctrine, a
§ 1983 plaintiff may not allege merely a "series of related
acts against one individual." Carpinteria Valley Farms, Ltd. v.
County of Santa Barbara, 344 F.3d 822, 828-29 (9th Cir. 2003)
(citing Morgan, 536 U.S. at 113). Rather, a plaintiff alleging
facts which demonstrate that the plaintiff was subjected to a
systematic pattern or practice of retaliation may invoke the continuing
violation doctrine. Carpinteria, 344 F.3d at 828, n. 3 (noting
that although the United States Supreme Court explicitly
invalidated the "related acts" method of invoking the continuing
violations doctrine, the Court declined to address whether the
"systematic pattern-or-practice" method remained valid).
Furthermore, "mere continuing impact from past violations is not
actionable." Knox, 260 F.3d at 1013.
Because the United States Supreme Court's holding in Morgan
explicitly rejected the "related acts" method of invoking the
continuing violation doctrine, Plaintiff's first argument for
application of the doctrine is inapplicable. As for Plaintiff's
second argument, although it appears that allegations describing
a systematic policy or practice of retaliation may properly
invoke the continuing violation doctrine, Plaintiff has not
actually made such allegations. See FAC at 20-21. In the
portions of the FAC surviving after the January 13, 2005 order
dismissing all claims except Plaintiff's retaliation claim
against Defendants Kitterman, Koen, and Sanders [Doc. No. 9],
Plaintiff alleges only a series of discrete retaliatory acts.
These discrete retaliatory acts include Defendant Koen's referral
of Plaintiff as a potential SVP and Defendant Kitterman's
statement to Plaintiff that SVP proceedings would be dropped if
Plaintiff signed the settlement agreement. See FAC at 7, 9.
Nowhere does Plaintiff allege facts demonstrating that Plaintiff
was subjected to a systematic pattern or practice of retaliation.
Furthermore, Plaintiff cannot prove any such systematic pattern
or practice since all of his claims were dismissed against all
Defendants except for his retaliation claim against Defendants
Koen, Kitterman, and Sanders. Any continuing impact which
Plaintiff has experienced since the alleged discrete retaliatory
acts occurred is insufficient to invoke the continuing violation
doctrine and is thus inactionable. Knox, 260 F.3d at 1013. Because Plaintiff has not
alleged facts sufficient to invoke the continuing violation
doctrine, this Court finds the continuing violation doctrine
inapplicable to Plaintiff's action.
Based on the foregoing, this Court determines that the
applicable statute of limitations bars all civil rights claims
asserted by Plaintiff. Consequently, as required under Rule 12
(b) (6) of the Federal Rules of Civil Procedure, Defendants have
clearly established that "no relief could be granted under any
set of facts that could be proved consistent with the
allegations." See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336,
338 (9th Cir. 1996). As such, this Court recommends that
Defendants' 12 (b) (6) Motion to Dismiss for untimeliness be
II. Exhaustion of Administrative Remedies
Defendants also move to dismiss Plaintiff's FAC on the grounds
that Plaintiff failed to exhaust his administrative remedies
under the Prison Litigation Reform Act ("PLRA"),
42 U.S.C. § 1997e (a). Def.'s Mem. at 6-7. Defendants argue that as a "prison
inmate," Plaintiff is subject to the administrative exhaustion
requirements of the PLRA. Id. Plaintiff disputes Defendants'
assertion that Plaintiff, as a civil detainee, is subject to the
PLRA's exhaustion requirement. Pl.'s Opp'n at 6-8.
The PLRA provides that "[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted." 42 U.S.C. § 1997e (a).
However, Defendants fail to mention that the Ninth Circuit has
explicitly held that "only individuals who, at the time they seek
to file their civil actions, are detained as a result of being
accused of, convicted of, or sentenced for criminal offenses are
`prisoners' within the definition of 42 U.S.C. § 1997e." Page v. Torrey, 201 F.3d 1136, 1139 (9th Cir.
2000).*fn5 For this reason, an individual civilly detained
under California's SVPA is not considered a "prisoner" and is not
subject to the PLRA's exhaustion requirements. Id. at 1140.
Consequently, this Court finds that Plaintiff, as a SVPA civil
detainee, is not a "prisoner" under 42 U.S.C. § 1997e (a) and
that the administrative exhaustion requirements thus do not apply
to Plaintiff. Accordingly, this Court recommends that Defendants'
12 (b) (unenumerated) Motion to Dismiss for failure to exhaust
administrative remedies be DENIED.
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED
that the Court issue an Order: (1) approving and adopting this
Report and Recommendation; (2) GRANTING Defendants' 12 (b) (6)
Motion to Dismiss the Complaint for untimeliness; and (3)
DENYING Defendants' 12(b) (unenumerated) Motion to Dismiss the
Complaint for failure to exhaust administrative remedies.
IT IS ORDERED that no later than December 5, 2005, any
party to this action may file written objections with the Court
and serve a copy on all parties. The document should be captioned
"Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall
be filed with the Court and served on all parties no later than
December 19, 2005. The parties are advised that failure to file
objections within the specified time may waive the right to raise
those objections on appeal of the Court's order. See Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998).
IT IS SO ORDERED.
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