United States District Court, N.D. California
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS
AS UNTIMELY; GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY
JUDGMENT RE: DKT. NOS. 23, 31, 43
M. WHYTE UNITED STATES DISTRICT JUDGE.
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.
following facts are taken in the light most favorable to
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.
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.
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.
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.
Motions to Dismiss
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.
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
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.
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
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 are therefore
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 ...