Ayala v. Grant

          ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AS UNTIMELY; GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 23, 31, 43

          RONALD M. WHYTE UNITED STATES DISTRICT JUDGE.

         Plaintiff, a California state prisoner proceeding pro se, filed a civil action in state court. Defendants filed a notice of removal to federal court because plaintiff’s complaint indicated that he was filing a lawsuit pursuant to 42 U.S.C. § 1983. Defendant T. Amrhein has filed a motion to dismiss as well as a motion for summary judgment. The remaining defendants have filed a separate motion to dismiss as well as a motion for summary judgment. Although given the opportunity, plaintiff has not filed any opposition. For the reasons stated below, defendants’ motions to dismiss are GRANTED, and defendants’ motions for summary judgment are GRANTED.

         BACKGROUND

         The following facts are taken in the light most favorable to plaintiff.

         On June 9, 2011, Lt. T. Amrhein and Sgt. J. Guthrie plotted an attack on plaintiff because plaintiff had filed a civil rights case against Sgt. J. Guthrie in Ayala v. Ayers, No. 10-0979 JSW (N.D. Cal. filed March 8, 2010). Dkt. No. 5-2 at 4-5. According to plaintiff, prison guards B. Radel, J. Del Rosario, and A. Bulatao grabbed plaintiff and Bulatao slammed plaintiff’s head into the ground. They began hitting plaintiff with their fists and knees, and repeatedly punched and slammed plaintiff’s head on the concrete floor. Id. at 5. Del Rosario placed leg chains on plaintiff, and Amrhein and Gurthrie ordered the guards to drag plaintiff into an office and place him in a chair. Id. at 6. Plaintiff was bleeding profusely from his head. Guthrie and Amrhein began interrogating plaintiff. When plaintiff refused to answer, Amrhein told him that if plaintiff answered the questions, Amrhein would have his guards stop beating him. Id. Plaintiff continued to refuse to answer the questions, and Gurthrie, Fradel, Del Rosario, and Bulatao began beating plaintiff again. Id. Plaintiff became unconscious and slipped onto the floor. Id. Guthrie told the guards not to activate the alarm until after they cleaned up the blood. Id. at 6-7. Amrhein stated, “That’s what happens when you fucken [sic] Hispanics don’t cooperate.” Id. at 7. D. Smethers took plaintiff to the drop-in clinic for medical care. Id. at 7, 9. Nurse T. Peterson looked at plaintiff’s head wound and remarked that she could not stop the bleeding. Dkt. No. 5-1 at 9-10. Amrhein instructed Peterson to wrap a bandage around plaintiff’s head and return him to the adjustment center. Id. at 10. Plaintiff returned to the adjustment center without having his head cleaned or seeing a doctor. Id. Plaintiff states that he did not see a doctor for over four months. Id.

         On June 21, 2011, plaintiff was written up for a rules violation report stemming from the June 9 incident that plaintiff claims was false. On March 9, 2013, Lt. B.A. Walls found plaintiff guilty of resisting peace officer. Dkt. No. 5-2 at 7-9; Decl. Walls, Ex. A.

         As a result of the incidents on June 9, 2011, plaintiff states that he has suffered long term injuries that cause him high levels of daily pain. Dkt. No. 5-1 at 22. Dr. J. Grant was plaintiff’s primary care physician, and plaintiff asserts that Dr. Grant refused to properly diagnose plaintiff’s injuries, refused to provide pain medications, and refused to provide a referral to a medical specialist. Id. at 22-24. According to plaintiff, Nurse Peterson, Nurse Podolsky, and Nurse White all failed to provide plaintiff access to doctors who could treat plaintiff’s pain. Id. at 25-26. Plaintiff also alleges that Dr. Tootell repeatedly refused to allow plaintiff to see a specialist to treat plaintiff’s pain. Id. at 26-27.

         At initial screening, this court found that, liberally construed, plaintiff stated cognizable claims of excessive force, retaliation, and deliberate indifference to his serious medical needs. The court also exercised supplemental jurisdiction over plaintiff’s state law claims.

         ANALYSIS

         I. Motions to Dismiss

         Defendants have filed motions to dismiss, arguing, inter alia, that plaintiff’s allegations regarding incidents occurring in 2011 are time-barred, and the state claims are barred as unexhausted. The court agrees.

         A. Timeliness

         Section 1983 does not contain its own limitations period. 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 (1985); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). In California, the general residual statute of limitations for personal injury actions is the two-year period set forth at California Civil Procedure Code § 335.1 and is the applicable statute in § 1983 actions. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); see also Cal. Civ. Proc. Code § 335.1 (current codification of residual limitations period, which became applicable on January 1, 2003, is two years). Thus, without tolling, because plaintiff’s cause of action accrued in June 2011, plaintiff’s federal complaint was due in June 2013.

         California Civil Procedure Code section 352.1 recognizes imprisonment as a disability that tolls the statute of limitations when a person is “imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term of less than for life.” See Cal. Civ. Proc. Code § 352.1(a). Thus, an inmate serving other than life without parole or under a death sentence has four years to bring a Section 1983 claim for damages in California, i.e., the regular two year period under section 335.1 plus two years during which accrual was postponed due to the disability of imprisonment. See Martinez v. Gomez, 137 F.3d 1124, 1125-26 (9th Cir. 1998) (per curiam) (prisoner serving life sentence with the possibility of parole is entitled to Section 352.1 tolling); Grasso v. McDonough Power Equip., 264 Cal.App. 2d 597, 601 (1968). Here, because plaintiff has been sentenced to death, he is not entitled to tolling under Section 352.1.

         The statute of limitations is also tolled for the period in which a prisoner administratively exhausted his underlying grievances, pursuant to the requirements of the PLRA. See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005) (“the applicable statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process”). Here, defendants have provided a copy of plaintiff’s administrative appeals regarding the June 9, 2011 incident. The first appeal is dated July 4, 2011. See Rangel Decl., Ex. A. Plaintiff pursued his administrative remedies through to the Director’s Level of Review, which responded to plaintiff on March 2, 2012. See id., Ex. B. Tolling to account for plaintiff’s exhaustion efforts thus gives plaintiff approximately eight additional months from June 2013. Plaintiff’s complaint was therefore due in February 2014.

         There is no other indication that plaintiff is entitled to any other tolling. The June 2011 incidents about which plaintiff complains in his March 19, 2015 complaint^[1] are therefore untimely.

         Accordingly, defendants’ motions to dismiss plaintiff’s claims that accrued in June 2011 are GRANTED. Specifically, the excessive force claim against Amrhein, Guthrie, Radel, Del Rosario, and Bulatao is DISMISSED as untimely. The retaliation claim against Amrhein, Guthrie, Radel, Del Rosario, Bulatao, and Smethers is DISMISSED as ...