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John Roettgen, Cdcr # V-05142 v. Eric Arnold

July 26, 2012

JOHN ROETTGEN, CDCR # V-05142,
PLAINTIFF,
v.
ERIC ARNOLD, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Irma E. Gonzalez, United States District Judge

ORDER: (1) GRANTING MOTION TO APPLY CAL. CODE CIV. P. § 352.1; AND (2) DISMISSING FIRST AMENDED COMPLAINT

FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)

I. PROCEDURAL HISTORY

On November 3, 2011, Plaintiff, a state inmate currently incarcerated at the Richard J. Donovan Correctional Facility ("RJD"), California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis (IFP) pursuant to 28 U.S.C. § 1915(a) [ECF No. 2]. On December 6, 2011, this Court granted Plaintiff's Motion to Proceed IFP but simultaneously dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and for lack of proper venue. (ECF No. 3.)

Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. (Id.) On July 6, 2012, after receiving an extension of time, Plaintiff filed his First Amended Complaint ("FAC"). (ECF No. 14.) In addition, Plaintiff has filed a "Motion to Apply Cal. Code P. Sec. 352.1." (ECF No. 16.)

II. MOTION FOR TOLLING

Plaintiff's claims in his FAC begin with events that occurred in August of 2008. Plaintiff filed this action in 2011, well within the applicable statute of limitations period. Because section 1983 contains no specific statute of limitation, federal courts apply the forum state's statute of limitations for personal injury actions. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). California's statute of limitations is two years. Jones, 393 F.3d at 927 (citing CAL. CIV. PROC. CODE § 335.1). In addition, Plaintiff has alleged that he has been incarcerated since 2003 and thus, he is entitled to an additional two years of tolling. CAL. CODE CIV. P. § 352.1

(tolling statute of limitations "for a maximum of 2 years" during a prisoner's incarceration). Accordingly, Plaintiff had four years from August of 2008 to file this action and in fact, he filed it well within this time frame Thus, Plaintiff's Motion is GRANTED but his First Amended Complaint will be dismissed for reasons other than timeliness as set forth below.

II. SCREENING PURSUANT TO 28U.S.C.§§1915(e)(2)&1915A(b)

As the Court stated in its previous Order, the Prison Litigation Reform Act ("PLRA")'s amendments to 28 U.S.C. § 1915 obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any prisoner civil action and all other IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir. 2000) (§ 1915A).

1. Count 1

Plaintiff alleges that on "August 8, 2008, Plaintiff was raped by his cellmate." (FAC at 7.) Plaintiff was admitted to the psychiatric unit the next day but he did not tell prison officials that he had been sexually assaulted. Instead, he was "satisfied to process this issue as merely an in-cell assault." (Id.) Plaintiff alleges that Defendant Sztukowski was responsible for "properly investigating and reporting Plaintiff's claims." Plaintiff claims Defendant Sztukowski failed to properly investigate the claims but did note in his report that Plaintiff and his cellmate should be designated as "enemies." (Id.) As a result of the alleged failure to properly report the incident by Sztukowski, Plaintiff claims that he was ordered to return to the cell where he had been assaulted. (Id. at 8.) Plaintiff was issued a rules violation report because he refused to "house with his assailant." (Id.)

Several days later on August 15, 2008, Plaintiff claims he told Defendant F. Martinez, a Lieutenant handing a different rules violation report, that he had been assaulted by his cellmate on August 8th. (Id.) However, Plaintiff claims Defendant Martinez "failed to follow up with a proper investigation insuring the incident was properly documented." (Id.) Plaintiff's rule violation report for the incident in which he refused to be housed with his cellmate and alleged assailant was conducted on September 11, 2007 by Defendant C. Munoz. (Id.) Plaintiff claims that Munoz "refused to order the matter to be investigated and properly documented." (Id.)

Prison officials have a duty to take reasonable steps to protect inmates from physical abuse. Farmer v. Brennan, 511 U.S. 825, 833 (1994). To establish a violation of this duty, the prisoner must establish that prison officials were "deliberately indifferent" to serious threats to the inmate's safety. See Farmer, 511 U.S. at 834. To demonstrate a prison official was deliberately indifferent to a serious threat to the inmate's safety, the prisoner must show that "the official [knew] of and disregard[ed]] an excessive risk to inmate. . . safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw the inference." Id., at 837. To prove knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to establish knowledge. See Farmer, 511 at 842.

While Plaintiff has alleged some serious allegations, he simply has not provided enough facts from which the Court can determine whether he has stated an Eighth Amendment claim. Plaintiff admits that he failed to tell prison officials the serious nature of the alleged assault. (See FAC at 7-8.) In order for the Court to find "deliberate indifference," Plaintiff has to show that the named Defendants "[knew] of and disregard[ed]] an excessive risk to inmate. . . safety." See Farmer, 511 U.S. at 837. Plaintiff does not allege any facts to demonstrate that the Defendants knew that he would be assaulted by his cellmate. He later claims that he did tell Defendant Martinez of the assault but it is not clear precisely what Plaintiff told Martinez. Moreover, it is not clear that Plaintiff was ever housed with his cellmate after the alleged assault occurred. Plaintiff does not allege any specific facts to show that Defendants knew of an excessive risk to his safety either prior to August 8, 2008 or anytime thereafter.

Accordingly, Plaintiff's Eighth Amendment Failure to Protect claims found in Count "1" are dismissed for failing to state a claim upon ...


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