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Charles G. Reece v. Tom L. Carey

January 25, 2012

CHARLES G. REECE,
PLAINTIFF,
v.
TOM L. CAREY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's motion to dismiss (Doc. 33). Plaintiff filed an objection to the motion, and defendant filed a reply.

I. Background

This action proceeds on plaintiff's third amended complaint against one defendant, Dickenson, on a claim of violation of his First Amendment right of access to the courts. All other claims and defendants have been dismissed. The basis of plaintiff's claim is that defendant Dickenson failed to properly process his inmate grievance, thus foreclosing on his ability to challenge his prison disciplinary proceedings in State court through a petition for writ of habeas corpus. He alleges that after his inmate grievance was improperly screened out and dismissed, the State court denied his habeas petition on the grounds that it was not exhausted.

II. Motion to Dismiss

Defendant Dickenson brings this motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), alleging petitioner's complaint is barred by the statute of limitations, fails to state a claim, and is barred by the rule of Heck v. Humphrey, 512 U.S. 477 (1994).

In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984).

Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557).

In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).

Defendant raises three grounds for dismissal: plaintiff's claims are barred by the statute of limitations, plaintiff's claims regarding the prison grievance system cannot form the basis for liability, and a judgment in plaintiff's favor would necessarily imply the invalidity of plaintiff's disciplinary conviction in contradiction of the rule set forth in Heck v. Humphrey, 512 U.S. 477 (1994).

A. Statute of Limitations

Defendant argues that plaintiff's claim involves defendant's action in screening out his inmate appeal. Therefore, he argues that the claim arose as of the date the appeal was screened out, March 2, 2005. Given the time frame for filing a complaint, plaintiff had four years to file his complaint, or until March 2009. Plaintiff's complaint was not filed until May 2009, two months too late.

Plaintiff counters that his claim is not based on the screening out of his inmate appeal, but rather the improper dismissal of his appeal. He argues that until his appeal was actually dismissed, he had no claim. His appeal was not dismissed until July 2005. In addition, he argues that prior to filing his complaint, he was required to exhaust his administrative remedies, and he did not receive the third and final level denial until February 28, 2006. He therefore had until February 2010, to file his complaint, which he complied with.*fn1

For claims brought under 42 U.S.C. § 1983, the applicable statute of limitations is California's statute of limitations for personal injury actions. See Wallace v. Kato, 549 U.S. 384, 387-88 (2007); Wilson v. Garcia, 471 U.S. 261, 280 (1985); Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 627 (9th Cir. 1988). In California, there is a two-year statute of limitations in § 1983 cases. See Cal. Civ. Proc. Code § 335.1; Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) ("[f]or actions under 42 U.S.C. § 1983, courts apply the forum state's statute of limitations for personal injury actions."). State tolling statutes also apply to § 1983 actions. See Elliott v. City of Union City, 25 F.3d 800, 802 (citing Hardin v. Straub, 490 U.S. 536, 543-44 (1998)). California Civil Procedure Code ยง 352.1(a) provides tolling of the statute of limitations for two years when the plaintiff, "at the time the ...


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