Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ortiz v. Madruga

United States District Court, E.D. California

April 24, 2017

FAUSTINO RUA ORTIZ, Plaintiff,
v.
MADRUGA, et al., Defendants.

          ORDER TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE DISMISSED FOR FAILURE TO COMPLY WITH THE APPLICABLE STATUTE OF LIMITATIONS AND BARRED BY HECK V. HUMPHREY, 512 U.S. 477 (1994) (DOC. 1)

         I. PROCEDURAL BACKGROUND

         Plaintiff, Faustino Rua Ortiz (“Plaintiff”) appearing pro se and in forma pauperis, filed a complaint on December 5, 2016, alleging civil rights violations pursuant to 42 U.S.C. § 1983 against numerous defendants. (Doc. 1). On the same day, Plaintiff also filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Ortiz v. Superior Court County of Fresno, No. 1:16-cv-01824-MJS (E.D.Cal. Dec. 5, 2016) (hereinafter, the “habeas case”). Plaintiff's complaint alleges that two detectives, the public defender, and probation officer violated his constitutional rights regarding an underlying criminal conviction.

         The civil rights complaint is presently before the Court for screening under 28 U.S.C. § 1915(e)(2). For the reasons described below, it appears that the claims are barred by the statute of limitations and Heck bar. Before recommending dismissal to the District Judge, this Court is providing Plaintiff with an order to show cause why his case should not be dismissed on these bases.

         II. STATUTE OF LIMITATIONS

         Federal law determines when a claim accrues, and “under federal law, a claim accrues “when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008) (quoting Two Rivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999)); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). In the absence of a specific statute of limitations, federal courts should apply the forum state's statute of limitations for personal injury actions. Lukovsky, 535 F.3d at 1048; Jones v. Blanas, 393 F.3d 918, 927 (2004); Fink, 192 F.3d at 914. California's statute of limitations for personal injury actions requires that the claim be filed within 2 years. Cal. Code Civ. Proc. § 335; Jones, 393 F.3d at 927. In actions where the federal court borrows the state statute of limitation, the court should also borrow all applicable provisions for tolling the limitations period found in state law. See Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 2000 (1989). Pursuant to the California Code of Civil Procedure section 352.1, a two-year limit on tolling is imposed on prisoners. Section 352.1 provides, in pertinent part, as follows:

(a) If a person entitled to bring an action, . . . is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not a part of the time limited for the commencement of the action, not to exceed two years.

         Thus, incarcerated plaintiffs have four years from the date that the cause of action accrued in which to file suit, if the cause of action accrued while the plaintiff was incarcerated. The equitable tolling doctrine also tolls the statute of limitations while exhaustion occurs. Donoghue v. County of Orange, 848 F.2d 926, 930-31 (9th Cir. 1988); Addison v. State of California, 21 Cal.3d 313, 318 (1978). Additionally whether an inmate is entitled to equitable tolling is decided by state law except to the extent that it is inconsistent with federal law. Jones, 393 F.3d at 927. Under California law equitable tolling is available where there is “timely notice, and lack of prejudice to the defendant, and reasonable and good faith conduct on the part of the plaintiff.” Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1132 (9th Cir. 2001) (quoting Addison, 21 Cal.3d at 319). Equitable tolling applies “to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.” Jones, 393 F.3d at 927 (quoting Lantzy v. Centex Homes, 31 Cal.4th 363, 370 (2003)). Application of equitable tolling “requires a balancing of the injustice to the plaintiff occasioned by the bar of his claim against the effect upon the important public interest or policy expressed by the . . . limitations statute.” Jones, 393 F.3d at 927 (quoting Lantzy, 31 Cal.4th at 371)).

         On March 20, 2017, the habeas case was dismissed because Plaintiff did not file the petition within the one year limitation period required by 28 U.S.C. § 2244(d). See Ortiz v. Superior Court County of Fresno, No. 1:16-cv-01824-MJS (E.D.Cal. Mar. 20, 2017). The habeas case described Plaintiff's prior litigation background as follows:

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Fresno, resulting from a January 31, 2005 jury verdict finding Petitioner guilty of multiple sexual felonies involving his minor daughter. … He was sentenced to an aggregate determinate state prison term of twenty-four years and eight months. …
On August 31, 2006, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. … Review was denied by the California Supreme Court on November 15, 2006. …
Petitioner did not file any state post-conviction collateral challenges. Id.

         The civil rights complaint presently before the Court for screening complains about the pre-arrest conduct of law enforcement officers, a public defender and a probation officer. Thus, the events described in Plaintiff's civil rights complaint would have occurred over eleven years ago.

         Accordingly, Plaintiff is ordered to show cause why this case should not be dismissed for failure to comply with the applicable statute of limitations.

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.