United States District Court, C.D. California
ANTOINE P. LeBLANC, Plaintiff,
WILLIAM PHELTON, Defendant.
ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE
DISMISSED AS UNTIMELY
ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE
a prisoner of the State of California currently incarcerated
at California State Prison-Los Angeles County in Lancaster,
California, has filed a pro se civil rights complaint under
42 U.S.C. § 1983 alleging that during the course of his
arrest in December 2005 the defendant (a deputy sheriff) used
excessive force by shooting plaintiff in the left back area.
Plaintiff seeks monetary damages.
Standard of Review
courts must engage in a preliminary screening of cases in
which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity. See 28
U.S.C. § 1915A(a). In its review, the Court must
identify any cognizable claims, and dismiss any claims which
are frivolous, malicious, fail to state a claim upon which
relief may be granted, or seek monetary relief from a
defendant who is immune from such relief. See Id. at
§ 1915A(b)(1), (2). Pro se pleadings must be liberally
construed. See Balistreri v Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a violation of a
right secured by the Constitution or laws of the United
States was violated, and (2) that the alleged deprivation was
committed by a person acting under the color of state law.
See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250,
101 L.Ed.2d 40 (1988).
Statute of Limitations
discussed below, it appears from the face of the Complaint
that plaintiff’s claim cannot go forward because it is
barred by the applicable statute of limitations. Although the
statute of limitations is an affirmative defense that
normally may not be raised by the court sua sponte, it may be
grounds for sua sponte dismissal of an in forma pauperis
complaint where the defense is complete and obvious from the
face of the pleadings or the court’s own records.
See Franklin v. Murphy, 745 F.2d 1221, 1228-30 (9th
Circ. 1984). Here, plaintiff has been granted leave to
proceed in forma pauperis, and for the reasons discussed
below, it appears from the face of the Complaint that the
statute of limitations is a complete and obvious defense to
the claim raised therein.
1983 does not contain its own limitations period. See
Elliott v. City of Union City, 25 F.3d 800, 802 (9th
Cir. 1994). Rather, the appropriate period is that of the
forum state’s statute of limitations for personal
injury torts. See Wilson v. Garcia, 471 U.S. 261,
276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In the event the
state has multiple statutes of limitations for different
torts, federal courts considering claims brought pursuant to
§ 1983 borrow the general or residual statute for
personal injury actions. See Silva v. Crain, 169
F.3d 608, 610 (9th Cir. 1999). Effective January 1, 2003,
California’s general residual statute of limitations
for personal injury actions is two years; prior to that date,
the limitations period for such actions was one year. See
Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir.
2004). Additionally, a federal court must give effect to a
state’s tolling provisions. See Hardin v.
Straub, 490 U.S. 536, 543-44, 109 S.Ct. 1998, 104
L.Ed.2d 582 (1989). In California, incarceration of the
plaintiff is a disability that tolls the statute for a
maximum of two years. See Cal. Civ. Proc. Code
§ 352.1. Tolling under section 352.1 is triggered by the
plaintiff’s arrest and incarceration. See
Elliott, 25 F.3d at 802-03. Once the prisoner is
released from incarceration, however, the statute of
limitations starts to run again, and tolling will not be
reinstated by subsequent incarceration. See Boag v. Chief
of Police, 669 F.2d 587, 589 (9th Cir. 1982) (holding
disability of imprisonment ceased upon prisoner’s
release on parole and was not reinstated by incarceration),
cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74
L.Ed.2d 97 (1982); Williams v. Coughlan, 244 F.2d 6,
8 (9th Cir. 1957) (holding statute of limitations not tolled
after prisoner released).
accrues when the plaintiff knows or has reason to know of the
injury that forms the basis of that cause of action. See
TwoRivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir.
1999); Elliott, 25 F.3d at 802. Here, plaintiff
alleges he was injured by events that took place during his
arrest on December 7, 2005; thus, plaintiff’s claim for
injury accrued no later than that date. If plaintiff remained
incarcerated for at least two years thereafter, under
California law plaintiff had, at most, four years from the
date on which his claims accrued in which to file his
Complaint against the instant defendant. Consequently,
plaintiff was required to file his Complaint by no later than
December 7, 2009. Plaintiff did not file instant action until
June 3, 2016.
plaintiff filed his Complaint, at a minimum, nearly 6-1/2
years after the statute of limitations had expired, the
instant action appears to be completely time-barred from the
face of the Complaint. Moreover, plaintiff s Complaint, when
read with the requisite liberality, contains no allegation
that would suggest plaintiff is able to show he is entitled
to any period of statutory tolling other than that discussed
above. See Jablon v. Dean Witter & Co., 614 F.2d
677, 683 (9th Cir. 1980) (holding complaint may be dismissed
on statute of limitations grounds where allegations therein,
even when read with required liberality, would not permit
plaintiff to prove statute was tolled).
plaintiff is ORDERED TO SHOW CAUSE, within 21 days of the
date of this Order, why this action should not be dismissed
as untimely under the statute of limitations. Failure by
plaintiff to file a timely and sufficient response will