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Gibbs v. Wood

United States District Court, N.D. California

April 20, 2017

KENNETH GIBBS, Plaintiff,
v.
T. WOOD, et. al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS; ORDER OF SERVICE Docket No. 23

          THELTON E. HENDERSON United States District Judge

         Plaintiff 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. [1] 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.

         I

         A A 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.

         B

         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); 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). [2]

         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 that is the basis of the action. See TwoRivers, 174 F.3d at 991-92; Elliott, 25 F.3d at 802.

         C

         Plaintiff 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).

         The 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.

         The 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.[3] 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).

         Plaintiff 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 untimely.

         The 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.

         Plaintiff 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.

         Nor is 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 without prejudice).

         D

         Plaintiff argues that he is also entitled to equitable tolling while the ...


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