United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is before the court on a motion to dismiss brought on behalf of defendants Johnson and Rosario. Plaintiff has filed an opposition to the motion, and defendants have filed a reply.
Plaintiff is proceeding on an amended complaint against defendants Johnson, Rosario, Caraway, and Spears. On March 19, 2013, the court screened plaintiff's complaint and found that it appeared to state cognizable claims against defendant Johnson for retaliation and for failure to protect and against defendant Rosario for failure to protect. (Doc. No. 36)
Defendants have moved to dismiss plaintiff's complaint as barred by the applicable statute of limitations. Specifically, defense counsel contends the alleged actions that plaintiff complains about took place more than two decades ago in 1990, but that plaintiff did not file his complaint in this action until 2012. (Defs.' Mem. of P. & A. 1-9.) In opposition to defendants' motion, plaintiff argues that he is entitled to equitable tolling of the statute of limitations because he received threats from prison officials and inmates whenever he filed a lawsuit. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 1-11.) For the reasons set forth below, the court will recommend that defendants' motion to dismiss this action as time-barred be granted.
I. Statute of Limitations for 42 U.S.C. § 1983
Because § 1983 does not contain a specific statute of limitations, federal courts apply the forum state's statute of limitations for personal injury actions. See 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). Before 2003, California's statute of limitations for personal injury actions was one year. Jones , 393 F.3d at 927. Effective January 1, 2003, however, in California that limitations period is now two years. See id. Federal courts also apply the forum state's laws with respect to tolling of the statute of limitations insofar as state law is not inconsistent with federal law. Jones, 393 F.3d at 297. Under California law, the statute of limitations is tolled for up to two years where the cause of action accrues while the plaintiff is in prison. See Cal. Civ. P. Code § 352.1.
Unlike the length of the statute of limitations or tolling, federal courts apply federal law to determine when a § 1983 cause of action accrues. Under federal law, a § 1983 action accrues, and the statute of limitations begins to run, when the defendants' alleged wrongful act or omission causes damage(s). See Wallace v. Kato , 549 U.S. 384, 388 (2007). In this regard, "a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Maldonado , 370 F.3d at 955.
The court may dismiss a claim under Rule 12(b)(6) on the grounds that it is barred by the applicable statute of limitations when "the running of the statute is apparent on the face of the complaint." Huynh v. Chase Manhattan Bank , 465 F.3d 992, 997 (9th Cir. 2006). See also Jablon v. Dean Witter & Co. , 614 F.2d 677, 682 (9th Cir. 1980) (a court may grant a motion to dismiss based on the statute of limitations "if the assertions of the complaint, read with required liberality, would not permit the plaintiff to prove that the statute was tolled."). In this case, plaintiff's allegations against defendants Johnson and Rosario center on events that allegedly took place in 1990. As such, plaintiff's cause of action accrued in 1990, and he had up to four years (the two-year limitations period plus the two-year statutory tolling due to plaintiff's incarceration) to file his § 1983 action in this court. However, plaintiff did not file this action until May 17, 2012, nearly two decades after the statute of limitations for doing so had expired. Neither party appears to dispute, and the undersigned finds, that this action is untimely unless plaintiff is entitled to equitable tolling.
Generally speaking, whether equitable tolling applies in a case is not amenable to resolution on a motion to dismiss because the determination often depends on matters outside of the pleadings. See Cervantes v. City of San Diego , 5 F.3d 1273, 1276 (9th Cir. 1993). However, where factual and legal issues are sufficiently clear to permit the court to determine as a matter of law that the equitable tolling doctrine cannot be successfully invoked, the court may dismiss an action on a Rule 12(b)(6) motion. See id. at 1276-77; Supermail Cargo v. United States , 68 F.3d 1204, 1206 (9th Cir. 1995). For the reasons discussed below, the court finds that it is clear from the complaint and matters subject to judicial notice that plaintiff in this case is not entitled to the over fifteen years of equitable tolling of the statute of limitations that it would take to render this action timely filed.
Under California law, a plaintiff must meet three conditions before he is entitled to equitable tolling of the statute of limitations: (1) he must have diligently pursued his claim; (2) that plaintiff is left without a judicial forum for his claims must be the result of forces beyond his control; and (3) the defendants must not be prejudiced by the application of equitable tolling. See Bollinger v. National Fire Insurance Co. , 25 Cal.2d 399, 406-11 (Cal. 1944); Rose v. Hudson , 153 Cal.App.4th 641, 655-56 (2007) (discussing the Bollinger rule of equitable tolling); Hull v. Central Pathology Serv. Med. Clinic , 28 Cal.App.4th 1328, 1334-35 (1994) (same). "The fundamental purpose underlying statutes of limitations is to protect defendants from having to defend stale claims by providing notice in time to prepare a fair defense on the merits." See Downs v. Dep't of Water & Power , 58 Cal.App.4th 1093, 1099-1100 (1997).
In this case, the court finds that plaintiff was not diligent in the pursuit of his claims. Specifically, there is no question that plaintiff has long been aware of the facts underlying his claims against the defendants. According to plaintiff himself, he filed a § 1983 action in the mid-1990s and therein requested damages, an injunction, and a restraining order. (Am. Compl. at 15 & Ex. 15-13) According to plaintiff, shortly thereafter prison officials allegedly took plaintiff's legal materials and, when he informed the court of these circumstances, the District Judge assigned to that case purportedly advised him to re-file his legal action at a later date. (Id.) Presumably, plaintiff is referring to ...