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Morman v. Dyer

United States District Court, N.D. California

April 4, 2017

WADE ANTHONY MORMAN, Plaintiff,
v.
MICHAEL DYER, et al., Defendants.

          ORDER OF SERVICE AND PARTIAL DISMISSAL RE: DKT., 7

          SUSAN ILLSTON United States District Judge

         Wade Anthony Morman, an inmate currently incarcerated at San Quentin State Prison, filed this pro se prisoner's civil rights action under 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 1915A, the court reviewed the complaint, discussed various pleading deficiencies and an apparent statute of limitations problem, and ordered Morman to file an amended complaint. He then filed an amended complaint, which is now before the court for review pursuant to 28 U.S.C. § 1915A.

         BACKGROUND

         The amended complaint, like the complaint before it, alleges claims based on events and omissions that occurred in 2011 and early 2012. The facts for the nine claims in the amended complaint are described in the Discussion section later in this order.

         Under the prisoner mailbox rule, a complaint is deemed filed as of the date a pro se prisoner gives the document to prison officials to mail to the court. Douglas v. Noelle, 567 F.3d 1103, 1108-09 (9th Cir. 2009). The complaint has a proof of service stating that Morman gave it to a prison official to mail to the court on March 18, 2016. This action therefore is deemed to have been filed as of March 18, 2016.

         DISCUSSION

         A. Legal Standard

         A federal court must engage in a preliminary screening of any case in which a prisoner seeks 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 complaints must be liberally construed. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

         B. Statute of Limitations Problems

         A statute of limitations sets a time limit for a plaintiff to file a court action for wrongs against him, and typically has no relation to the merits of the claims asserted. Section 1983 does not contain its own limitations period, so the court looks to the limitations period of the forum state's statute of limitations for personal injury torts. See Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). California's statute of limitations period for personal injury torts is now two years, and the statute of limitations period for § 1983 claims is two years. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Cal. Civ. Proc. Code § 335.1; Elliott, 25 F.3d at 802. It is federal law, however, that determines when a cause of action accrues and the statute of limitations begins to run in a § 1983 action. Wallace v. Kato, 549 U.S. 384, 388 (2007); Elliott, 25 F.3d at 801-02. Under federal law, a claim generally accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. See Elliott, 25 F.3d at 802. The statute of limitations period generally begins when a plaintiff has knowledge of the “critical facts” of his injury, which are “that he has been hurt and who has inflicted the injury.” United States v. Kubrick, 444 U.S. 111, 122 (1979).

         Incarceration of the plaintiff is a disability that may toll the statute for a maximum of two years, but only for a plaintiff who is in prison “for a term less than for life” and is under the disability at the time the cause of action accrues. See Cal. Civ. Proc. Code § 352.1. Morman is serving a 118-year prison sentence following his conviction for kidnapping and several sex offenses. Docket No. 7 at 25-26 (citing Cal. Penal Code §§ 209, 261, 286, 288). He thus is entitled to two years of tolling under California Code of Civil Procedure § 352.1.

         The limitations period may be subject to equitable tolling. Under California law, equitable tolling “‘reliev[es] plaintiff from the bar of a limitations statute when, possessing several legal remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage.'” Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (quoting Addison v. California, 21 Cal.3d 313, 317 (1978)). Thus, in an appropriate case, the statute of limitations might be tolled for time spent pursuing a remedy in another forum before filing the claim in federal court. The limitations period also may be tolled for the period in which a prisoner exhausted administrative remedies for his inmate appeals pertaining to a claim. See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005).

         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 Cir. 1984). That is the situation here: the defense appeared complete and obvious from the face of the complaint because this action was filed more than four years after the events and omissions alleged in the complaint occurred. The only events mentioned in the complaint that occurred less than four years before the filing of the complaint were that some of the inmate appeals were decided within that period.

         In the order of dismissal with leave to amend, the court discussed the apparent statute of limitations problem, and explained that the defense appeared complete and obvious from the face of the complaint because this action was filed more than four years after the events and omissions alleged in the complaint occurred. See Docket No. 5 at 2-4. The court directed Morman to “explain why his claims based on events and omissions that occurred before March 18, 2012 are not barred by the statute of limitations. . . . Because the limitations period accrues on different dates for incidents that occur on different dates, and the tolling events may be different for each claim, Morman must present his statute of limitations argument on a claim-by-claim basis rather than present a single statute of limitations argument for all his claims.” Id. at 4.

         Morman's amended complaint contains an explanatory note suggesting that all the claims should be lumped together for statute of limitations purposes. See Docket No. 7 at 24. He urges that he “began filing grievances between August 2011 and April 2012 and the prison appeal's process was not completed until after May 1, 2012, ” and therefore he “has four years beyond that May, 2012 to file his complaint.” Id. (errors in source). The law does not support his view that any pending administrative appeal tolls the limitations period for all claims. Although the limitations period for a claim may be tolled while the plaintiff-prisoner exhausts administrative remedies, see Brown, 422 F.3d at 942-43, it does not follow that the limitations period is tolled for every claim in a complaint as long as the plaintiff is exhausting administrative remedies as to one of those claims.[1] Morman's proposed approach would allow a prisoner to revive a time-barred old claim (by filing administrative appeals about new claims and then filing a complaint containing both the old and new claims), and would allow a prisoner to extend indefinitely the statute of limitations deadline for claims (by serially pursuing administrative remedies for one claim, and then other new claims, and then even other new claims) even though there is no need to wait for the later claims to be exhausted to file a complaint asserting the first claim. Such results would go far beyond the intent of the rule mentioned in Brown, which is to avoid a prisoner being unable to pursue a claim in federal court simply because prison officials delayed in resolving the administrative appeal for that claim. The court concludes that the time during which a prisoner-plaintiff is exhausting administrative remedies for a wrong tolls the limitations period only for the claim covered by that particular inmate appeal. Where there are multiple claims with multiple inmate appeals, the tolling time for each claim will be based on the length of time during which the inmate appeal for that alleged wrong is pending. Just as there can be different accrual dates for different claims, so too can there be different administrative-exhaustion tolling periods for each of those claims.

         C. The Claims

         Claims 1-3: Morman alleges the following: In “the last week of August, 2011, ” correctional officer (C/O) Quintero stopped and searched Morman. C/O Quintero gave him a “wedgy” due to Morman's “verbal indication” that this was the third time he had been searched in two weeks. Docket No. 7 at 5. Several other C/Os condoned and encouraged Quintero giving Morman a wedgie. Morman “verbally indicated” that this was unacceptable, leading C/O Heller to tell Morman (using profanity) to retrieve his things and leave. Id. at 6. Other correctional staff made sarcastic comments. When Morman continued to scold the correctional officers, C/O Lee rushed up to within about two feet of Morman, took a “stance indicating he was ready to attack, ” and dared Morman to fight or shut up and leave. Id. at 7. On or around August 25th, C/O Lee saw Morman walking and talking to another inmate, and ordered Morman (again using profanity) to shut up and keep walking. Id. at 8. Also on or about August 25th, C/O Lee further insulted Morman, rushed to within about two feet of Morman, and took an aggressive stance. C/O Lee told another C/O that Morman was a “J-Cat.”[2] Id. at 9.

         Claims 1-3 are dismissed without leave to amend because they are barred by the statute of limitations. The events giving rise to the claims occurred in “the last week of August, 2011, ” or “[o]n or near August 25, 2011, ” Docket No. 7 at 5, 8, 9. Morman would have known of the critical facts of the alleged injuries to him as the interactions with the correctional staff occurred. The claims accrued as the events occurred, which was more than four years before this action was filed. This action was not filed until March 18, 2016, which was four years, six months and several days after the claims accrued. Allowing tolling for the time during which Morman was exhausting administrative remedies does not make the claims timely. Morman stated in his original complaint that efforts to exhaust claims regarding the August 25, 2011 incident concluded on February 15, 2012. See Docket No. 1 at 3, 8; Docket No. 7 at 6-7. When his administrative appeal about the events giving rise to Claims 1-3 was finally denied, nothing stood in the way of Morman filing a ยง 1983 action asserting Claims 1-3. ...


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