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Joseph A. Sherman v. City of Davis

March 5, 2012


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


Plaintiff is proceeding in this action pro se and in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302(21), pursuant to 28 U.S.C. § 636(b)(1).

Presently before the court is defendant's motion to dismiss, filed September 12, 2011, and defendant's motion to declare plaintiff a vexatious litigant and impose pre-filing requirements, filed November 10, 2011. By order of November 9, 2011, this court construed plaintiff's September 27, 2011 filing, entitled "motion for summary judgment," to the extent possible, as an opposition to the motion to dismiss. Plaintiff did not file an opposition to the motion seeking to declare him vexatious. Having reviewed the filings, the court now issues the following findings and recommendations.*fn1 BACKGROUND

Joseph Sherman filed this action on March 25, 2011, alleging various incidents of police harassment in the City of Davis from 1999 through November, 2010. Many of the claims are time barred, but the timely claims mostly pertain to his alleged attempts to express his First Amendment rights to free speech in public and private locations in Davis, and police efforts to arrest him based on citizens' complaints. His speech is alleged to have been in the form of proselytizing and obtaining signatures for ballot petitions. After plaintiff was told to leave an area, such as a park, retail store or city sidewalk, by private individuals, police would arrive and tell him to leave. He alleges they threatened him with arrest and sometimes unjustly seized and arrested him, in violation of his First Amendment rights, and violated his equal protection rights by discriminating against him based on his religion and low income. The complaint seeks damages.


I. Request for Judicial Notice

Defendant requests that the court take notice of the following documents: plaintiff's complaint in a prior lawsuit against the City, case number Civ.S. 04-2320 LKK EFB PS (Ex. A to Sanders Decl.); the magistrate judge's findings and recommendations on summary judgment in the City's favor in that case, (Id.,Ex. B); Judge Karlton's order in that case, adopting the findings and recommendations (Id., Ex. C); the bench warrant issued by the Yolo County Superior Court Judge Beronio in Yolo county Superior Court case number CR-M-09-0004111 (Id., Ex. D); plaintiff's petition for writ of habeas corpus, filed June 7, 2011, case number Civ.S. 11-1537 CKD (Id., Ex. E); and the docket showing the status of that writ (Id.,Ex. F).

A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). All requests for judicial notice are granted pursuant to Fed. R. Evid. 201, as they do not require the acceptance of facts "subject to reasonable dispute" and are capable of immediate and accurate determination by resort to a source whose accuracy cannot be reasonably questioned. See In re Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781-82 (E.D. Cal. 1992); Fed. R. Evid. 201(b); Cal. ex. rel. RoNo, L.L.C. v. Altus Fin. S.A., 344 F.3d 920, 931 n. 8 (9th Cir. 2003). The requests for judicial notice are pertinent insofar as the documents indicate that a motion was filed or a certain result obtained in a court order/warrant.

II. Motion to Dismiss

A. Legal Standard For Motion to Dismiss

In order to survive dismissal for failure to state a claim pursuant to 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.

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 v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).

B. Analysis

Defendant brings the instant motion for failure to state a claim based on 92 claims that are barred by the statute of limitations, and because the remaining 14 claims are either barred by Heck v. Humphrey or fail to state a claim.

1. Claims 15 Through 106 are Time Barred

Defendant argues that all of the pertinent events concerning claims 15 through 105 occurred more than two years before plaintiff filed his complaint, and therefore they are time barred.

For civil rights actions under 42 U.S. C. § 1983, federal courts apply the statute of limitations of the state in which the claim arises. See Donoghue v. County of Orange, 848 F.2d 926, 929 (9th Cir. 1987). State law also determines the application of tolling doctrines. See Hardin v. Straub, 490 U.S. 536, 543-44 (1989) (relevant state tolling statutes apply to prisoners' civil rights suits); Johnson v. Railway Express CVMB, 421 U.S. 454, 464-65 (1975) (state tolling provisions apply unless an important federal policy will be undermined by their application).

Section 1983 actions are characterized as personal injury actions for purposes of identifying the applicable statute of limitations. See Wilson v. Garcia. 471 U.S. 261, 268-71, 276 (1985); Bianchi v. Bellingham Police Dep't., 909 F.2d 1316, 1317 (9th Cir. 1990). In California, the applicable statute of limitations is California Code of Civil Procedure § 335.1, which provides for a limitations period of two years from the date the cause of action accrues. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). At the time of some of the alleged injuries, the limitations period was one year for personal injury actions. See former Cal. Code Civ. Proc. § 340(3).

While normally the burden of proving that the statute of limitations has expired falls on the defendant, see Bradford-White Corp. v. Ernst & Whinney, 872 F.2d 1153, 1161 (3d Cir. 1989), when the statute of limitations defense shows on the face of the complaint, the burden of alleging facts which would extend the statute falls upon the plaintiff. Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 120 (9th Cir.1980); Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248, 249 (9th Cir.1978). "[I]f the plaintiff . . . pleads facts and the facts show that he is entitled to no relief, the complaint should be dismissed. There would be no point in allowing such a lawsuit to go any further; its doom is foretold." American Nurses' Ass'n v. Illinois, 783 F.2d 716, 727 (7th Cir.1986). See Tregenza v. Great Am. Communications Co., 12 F.3d 717, 718 (7th Cir.1993) (where affirmative defense of statute of limitations follows inevitably from facts pleaded in complaint, Rule 12(b)(6) dismissal may be proper), cert. denied, 511 U.S. 1085, 114 S. Ct. 1837, 128 L.Ed.2d 465 (1994); Thomas v. Farley, 31 F.3d 557, 558-559 (7th Cir. 1994) (plaintiff choosing "to plead particulars, and they show he has no claim, then he is out of luck -- he has pleaded himself out of court.") Plaintiff concedes that the acts complained of in counts 15 through 106 fall outside the statute of limitations; however, he contends that they are viable claims based on the "continuing violation doctrine," and that they "additionally are included as evidence." (Compl., ¶ 22.) In his opposition, plaintiff attempts to characterize these claims as employment related issues so that the continuing violation theory will apply. (MSJ at 23.)

Defendant argues that the claims pertain to discrete acts that are actionable on their own and therefore the continuing violation theory does not apply. Defendant cites Thompson v. City of Shasta Lake, 314 F. Supp.2d 1017, 1026 (E.D. Cal. 2004), for the proposition that the continuing violation theory does not apply where plaintiff alleges he has been subjected to a pattern of harassing conduct by a municipality. Defendant further argues that four of the alleged incidents were already alleged in a prior complaint, filed in 2004, and they were dismissed by Judge Brennan based on the statute of limitations. (Ex. B to Sanders Decl.)

Contrary to plaintiff's assertions, the "continuing violation theory" cannot save those claims from the statute of limitations. "Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 828 (9th Cir.2003) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). The court in Carpinteria declined to apply the "continuing violation theory" to a 42 U.S.C. ยง 1983 action in which a number of discrete violations were alleged, explaining that the time-barred acts could not be used to support plaintiff's claims of constitutional violations, but that such acts could serve as evidence to "establish motive and put his timely-filed claims in context." Id. at ...

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