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Darius Sims v. Ann Wholers

August 11, 2011

DARIUS SIMS, PLAINTIFF,
v.
ANN WHOLERS, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Introduction

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. The parties have consented to the jurisdiction of the undersigned. See docket #8 and #23. Pending before the court is the defendants' motion to dismiss as barred by the statute of limitations, filed on December 16, 2010, to which plaintiff filed an opposition on January 12, 2011. Defendants elected not to file a reply.

Amended Complaint

This action is complicated by plaintiff's lack of focus and coherence both in the amended complaint and in his opposition (see below). Defendants Anne Wohlers; Assistant Wardens Silvia Garcia and M. Bunnell; Captain W. Knipp; Lieutenant E. Palubicki; Psychologist S. Andrews; Ad Seg*fn1 Property Officer Correctional Officer (C/O) Montanez were employed at Mule Creek State Prison (MCSP) during the relevant period. Amended Complaint (AC), pp. 2, 9. Plaintiff's allegations against defendant Montanez appears to be that this officer refused to mail plaintiff's legal mail to Kings County Superior Court, did not permit him access to his legal material while he was in Ad Seg at MCSP even after he heard the judge in a court call tell plaintiff he needed to send certain documents, and was the officer who packed his property for transfer to Salinas Valley State Prison (SVSP) after which he discovered his legal property missing. Id., at 3. Plaintiff claims that Montanez's refusal to respond to his repeated requests for access to his legal material was in retaliation for a grievance plaintiff wrote complaining of defendant Montanez's failure to send out plaintiff's legal mail concerning a case plaintiff had against alleged misconduct by prison staff at another facility, Corcoran State Prison. Id., at 3-4. Thus, the essence of this claim is a hybrid retaliation/denial of the right of access to the court. The court construes the gravamen of plaintiff's allegations against defendant Wholers to be that in retaliation for plaintiff's having written several 602 inmate grievances against her, Wholers threatened to have plaintiff's personal property confiscated, and falsely attributed (along with defendant Andrews) a statement to plaintiff wherein he purportedly threatened to kill defendant Wholers, resulting in a false disciplinary report, which was later dismissed. Id., at 11-12. Plaintiff's allegation against defendant Palubicki, who dismissed the charge due to a lack of supporting evidence, is that he nevertheless wrote a false report to cover-up the misdeeds of defendants Wholers and Andrews.

Id., at 12. Plaintiff claims defendant Knipp's failure to see to it that he was allowed access to his legal material resulted in plaintiff's case being dismissed. Id., at 4. Plaintiff alleges that defendants Garcia and Bunnell had plaintiff transferred to Salinas Valley State Prison (SVSP) because of the 602 appeals plaintiff submitted against defendant Wholers. Id., at 5, 13. The last court call to Kings County Superior Court occurred on August 16, 2006. Amended Complaint (AC), p. 3. Plaintiff seeks compensatory money damages as to all defendants, and also seeks punitive damages as to defendants Wholers, Andrews and Montanez. Id., at 4, 9.

Motion to Dismiss

Defendants move for dismissal of the amended complaint pursuant to Fed. R. Civ. 12(b)(6), on the ground that each of his claims is barred by the statute of limitations. See Motion to Dismiss (MTD).

Legal Standard for Motion to Dismiss.

Motions to dismiss pursuant to Fed.R.Civ.P 12(b)(6) based on the expiration of the pertinent statute of limitations are appropriate. See Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir.2010) ("A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when 'the running of the statute is apparent on the face of the complaint.' ") (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir.2006)). However, as discussed below, "face of the complaint" includes matters of which judicial notice may be taken, and exhibits attached to the complaint.

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll ...


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