United States District Court, E.D. California
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)
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.
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.
STATUTE OF LIMITATIONS
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.
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)).
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
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
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,
Petitioner did not file any state post-conviction collateral
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.
Plaintiff is ordered to show cause why this case should not
be dismissed for failure to comply with the applicable
statute of limitations.