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IRVIN v. KITTERMAN

United States District Court, S.D. California


November 2, 2005.

STEVEN DERRICK IRVIN, Plaintiff,
v.
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.

PROCEDURAL BACKGROUND

  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 Predator ("SVP").

  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 submission.

  FACTUAL BACKGROUND

  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.

  DISCUSSION

  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 at 3-8.

  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 case.*fn1

  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 applied).

  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 claims.*fn4

  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 GRANTED.

  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.

  CONCLUSION

  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.

20051102

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