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McCovey v. Del Norte County

United States District Court, N.D. California, San Francisco Division

July 9, 2014

WILLIAM McCOVEY III, Plaintiff,
v.
DEL NORTE COUNTY; et al., Defendants.

ORDER OF DISMISSAL

LAUREL BEELER, Magistrate Judge

INTRODUCTION

William McCovey III filed this pro se prisoner's civil rights action under 42 U.S.C. § 1983, complaining of events and omissions that had occurred in 2000 and that had been the subject of an earlier action he filed. The court ordered Mr. McCovey to show cause why the action should not be dismissed as untimely and as barred by the doctrines of issue and claim preclusion. Mr. McCovey did not respond to the order to show cause, and the deadline by which to do so has passed. This order dismisses the entire action.

STATEMENT

The complaint in this action was stamped "filed" on March 18, 2014. Mr. McCovey signed the complaint on March 10, 2014, and mailed it to the court from a county jail in Madras, Oregon. The envelope containing the complaint has a March 13, 2014 postmark. See ECF No. 2-1.

Mr. McCovey alleged in his complaint that he was subjected to excessive force by seven officers on an unstated date at the Del Norte County Jail. ECF No. 1 at 3. One of those officers was Debra Guzman, and the other six officers were listed as John Doe defendants. He alleged, among other things, that the officers entered his cell and jumped on his back, pulled him out of his cell by his hair, and stomped on his back again. Id. Mr. McCovey sought money damages.

Upon noting that several statements in his complaint indicated that the incident complained of was the same incident complained of in McCovey v. Guzman, Case No. C 01-2850 SBA (occasionally referred to as "the 2001 action"), the court required Mr. McCovey to file an amendment to the complaint to state the date on which the alleged excessive force took place. ECF No. 5.

Mr. McCovey then filed an amendment in which he stated that "the exact date and time of the excessive force is in my original complaint filed 2001, heard by your honorable Judge Saundra Armstrong Brown, federal court in Oaktown." ECF No. 8 at 2. The complaint filed in the 2001 action stated that the use of force incident occurred "[t]owards the end of July 2000." ECF No. 1 in McCovey v. Guzman, Case No. C 01-2850 SBA.

In the 2001 action, the court granted summary judgment for defendant Debra Guzman and dismissed the Doe defendants without prejudice on February 11, 2005. See ECF No. 23 in McCovey v. Guzman, No. C 01-2850 SBA. The summary judgment order, like Debra Guzman's evidence, identified the date of the use-of-force incident as September 3, 2000. Id. at 5-6. Mr. McCovey did not file an appeal in the 2001 action.

The documents filed in the 2001 action provided some information about Mr. McCovey's custodial status around the time of the use-of-force incident. State court records filed as exhibits to a declaration showed the following: Mr. McCovey had pled guilty to certain criminal charges on August 8, 2000 and was sentenced on September 5, 2000. See Exs. C and M to ECF No. 19 in McCovey v. Guzman, No. C 01-2850 SBA. His prison sentence was suspended and he was put on probation. See id. He was sent to a residential treatment program on or about September 15, 2000. See Exs. N-Q to ECF No. 19 in McCovey v. Guzman, No. C 01-2850 SBA. A bench warrant was issued for Mr. McCovey's arrest on October 6, 2000 in response to the People's petition for modification of probation in which the People had alleged that Mr. McCovey violated probation by leaving the residential treatment program on October 1, 2000 and committing further crimes on October 4, 2000. See Exs. N, O and P to ECF No. 19 in McCovey v. Guzman, No. C 01-2850 SBA. Mr. McCovey thus was out of custody no later than October 6, 2000, when the bench warrant for his arrest was issued. By the time Mr. McCovey filed the 2001 action on July 25, 2001, he was once again incarcerated, this time at Avenal State Prison. On February 2, 2005, he filed a change of address notice with a non-prison mailing address. See ECF No. 22 in McCovey v. Guzman, No. C 01-2850 SBA.

ANALYSIS

I. The Complaint is Time-Barred

In an action brought under 42 U.S.C. § 1983, the court applies the limitations period of the forum state's statute of limitations for personal injury torts. See Wilson v. Garcia, 471 U.S. 261, 276 (1985); Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). The statute of limitations in California for personal injury torts, and hence for § 1983 claims, was one year until the legislature changed it to two years effective January 1, 2003. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); former Cal. Civ. Proc. Code § 340(3) (one-year general residual statute of limitations for personal injury actions); Cal. Civ. Proc. Code § 335.1 (current codification of residual limitations period); Elliott, 25 F.3d at 802. Under federal law, a claim accrues "when the plaintiff knows or has reason to know of the injury which is the basis of the action." TwoRivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 1999); Elliott, 25 F.3d at 802.

Mr. McCovey's claim accrued on September 3, 2000, the day he allegedly was subjected to the use of excessive force in the Del Norte County Jail. See Cabrera v. City of Huntington Park, 159 F.3d 374, 381 (9th Cir. 1998) (plaintiff's excessive force claim accrued on day of his arrest). The complaint in ...


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