United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS;
ORDER OF SERVICE Docket No. 23
THELTON E. HENDERSON United States District Judge
Kenneth Gibbs, a state prisoner, filed this pro se action
under 42 U.S.C. § 1983. The case proceeds against
Defendants Wood, Milton, Royal and Evans.  Plaintiff alleges
that Wood transferred Plaintiff to a different Administrative
Segregation (“Ad. Seg.”) unit in retaliation for
filing a grievance; Wood, Milton and Royal placed Plaintiff
on C-status in retaliation for filing a grievance; and Evans
used excessive force against Plaintiff in retaliation for
calling another officer a racist. Defendants have filed a
motion to dismiss on the grounds that the claim against Wood
for transferring Plaintiff and the claim against Evans are
barred by the statute of limitations. Plaintiff has opposed
the motion, and Defendants have filed a reply. For the
reasons that follow, Defendants' motion is GRANTED.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests for the legal sufficiency of the claims
alleged in the complaint. Ileto v. Glock, Inc., 349
F.3d 1191, 1199-1200 (9th Cir. 2003). All allegations of
material fact are taken as true. Erickson v. Pardus,
551 U.S. 89, 94 (2007). However, legally conclusory
statements, not supported by actual factual allegations, need
not be accepted. See Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009) (courts are not bound to accept as true
“a legal conclusion couched as a factual
allegation”). “A plaintiff's obligation to
provide the grounds of his entitle[ment] to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (alteration in original) (internal quotation marks
omitted). Rather, the allegations in the complaint
“must be enough to raise a right to relief above the
speculative level.” Id.
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); Elliott v.
City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). In
California, the general residual statute of limitations for
personal injury actions is the two-year period set forth at
California Civil Procedure Code section 335.1 and is the
applicable statute in § 1983 actions. See Maldonado
v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); see
also Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999)
(limitations period for filing § 1983 action in
California governed by residual limitations period for
personal injury actions in California, which was then one
year and was codified in Cal. Civ. Proc. Code § 340(3));
Cal. Civ. Proc. Code § 335.1 (current codification of
residual limitations period, which is now two years; enacted
in 2002). 
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 that is the basis
of the action. See TwoRivers, 174 F.3d at 991-92;
Elliott, 25 F.3d at 802.
previously proceeded with a case in this Court with several
claims including the same allegations against these
Defendants. See Gibbs v. Farley (“Gibbs
1”), Case No. 13-cv-0860-TEH (N.D. Cal. Feb. 18,
2016). On July 21, 2015, the Court granted in part
Defendants' motion for summary judgment in Gibbs
1 and dismissed claims against these Defendants without
prejudice for failure to exhaust. Gibbs 1, Docket
No. 167. Plaintiff did not exhaust administrative remedies
until several months after commencing the action. A prisoner
must exhaust his administrative remedies for constitutional
claims prior to asserting them in a federal civil rights
complaint. 42 U.S.C. § 1997e(a); McKinney v.
Carey, 311 F.3d 1198, 1199 (9th Cir. 2002).
instant action contains the same allegations against the same
Defendants. However, Plaintiff was able to proceed with this
action because the claims were exhausted prior to its filing.
Defendants argue that two of the claims are untimely.
cause of action against Defendant Wood accrued on January 3,
2013, the date Wood allegedly transferred Plaintiff to a
different Ad. Seg. unit. The statute of limitations expired
two years later on January 3, 2015. The complaint was filed
on August 12, 2015, and thus is untimely unless Plaintiff is
entitled to tolling. A federal court must give effect to a
state's tolling provisions. See Hardin v.
Straub, 490 U.S. 536, 543-44 (1989); Marks v.
Parra, 785 F.2d 1419, 1419-20 (9th Cir. 1986).
is entitled to tolling for the time he was administratively
exhausting his claims. See Brown v. Valoff, 422 F.3d
926, 942-43 (9th Cir. 2005). The administrative appeal was
submitted on January 23, 2013 and denied at the final level
on June 13, 2013. Opposition at 20; Docket No. 1-1 at 42-44.
Plaintiff is entitled to 142 days of tolling, which extends
the statute of limitations to May 25, 2015. This action was
not filed until August 12, 2015; therefore, the claim is
cause of action against Defendant Evans accrued on March 15,
2013, the date Evans allegedly assaulted Plaintiff. The
statute of limitations expired two years later on March 15,
2015; thus, this action which was not filed until August 12,
2015, is untimely absent tolling. Plaintiff is entitled to
tolling while he was exhausting administrative remedies. He
filed an administrative appeal on March 17, 2013, that was
denied on July 19, 2013, giving Plaintiff 124 days of
tolling. Opposition at 31; Docket No. 1-1 at 19-24. With
these 124 days of tolling, Plaintiff needed to have filed his
action by July 17, 2015. The action, filed on August 12,
2015, was nearly a month late.
is not entitled to tolling while the previous federal action
was pending. “[A] suit dismissed without prejudice is
treated for statute of limitations purposes as if it had
never been filed.” Elmore v. Henderson, 227
F.3d 1009, 1011 (7th Cir. 2000). Conversely, “a
prescriptive period is not tolled by filing a complaint that
is subsequently dismissed without prejudice.”
Chico-Velez v. Roche Products, Inc., 139 F.3d 56, 59
(1st Cir. 1998). Thus, “[i]n instances where a
complaint is timely filed and later dismissed, the timely
filing of the complaint does not ‘toll' or suspend
the [ ] limitations period.” O'Donnell v.
Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. 2006) (per
curiam); see also Wood v. Elling Corp., 20 Cal.3d
353, 359 (1977) (quoting 51 Am. Jur. 2d Limitation of
Actions § 311, at 813) (“‘In the
absence of a statute, a party cannot deduct from the period
of the statute of limitations. . . the time consumed by the
pendency of an action in which he sought to have the matter
adjudicated, but which was dismissed without prejudice to
him.'”). “[I]f the suit is dismissed without
prejudice, meaning that it can be refiled, then the tolling
effect of the filing of the suit is wiped out and the statute
of limitations is deemed to have continued running from
whenever the cause of action accrued, without interruption by
that filing.” Elmore, 227 F.3d at 1011.
there a way for this action to “relate back” to
the prior action. See O'Donnell, 466 F.3d at
1111 (second complaint does not “relate back” to
first complaint because it is not an “amendment”
but a separate filing); Young v. Rorem, 977 F.2d 594
(9th Cir. 1992) (unpublished) (new action cannot
“relate back” to original complaint under Federal
Rule of Civil Procedure 15(c) because the original action was
dismissed and not pending when the new action was filed);
Hill v. Prunty, 55 F. App'x 418, 419 (9th Cir.
2003) (new complaint alleging same claim does not relate back
to prior complaint, even if the prior complaint was dismissed
argues that he is also entitled to equitable tolling while