United States District Court, E.D. California
DAVID C. PATKINS, Plaintiff,
R. GONZALES, et. al., Defendant.
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. In addition to filing a
complaint (ECF No. 1), plaintiff has filed two applications
to proceed in forma pauperis under 28 U.S.C. § 1915. ECF
Nos. 2 & 6.
Application to Proceed In Forma Pauperis
court has reviewed the second of plaintiff's applications
(ECF No. 6) and finds that it makes the showing required by
28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate
order, the court directs the agency having custody of
plaintiff to collect and forward the appropriate monthly
payments for the filing fee as set forth in 28 U.S.C. §
1915(b)(1) and (2). Plaintiff's other application (ECF
No. 2) will be denied as moot.
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
“is [legally] frivolous where it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Franklin v.
Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).
“[A] judge may dismiss [in forma pauperis] claims which
are based on indisputably meritless legal theories or whose
factual contentions are clearly baseless.” Jackson
v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation
and internal quotations omitted), superseded by statute
on other grounds as stated in Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at
327. The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
Rule of Civil Procedure 8(a)(2) requires only ‘a short
and plain statement of the claim showing that the pleader is
entitled to relief, ' in order to ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). However, in order to survive dismissal for failure
to state a claim, a complaint must contain more than “a
formulaic recitation of the elements of a cause of
action;” it must contain factual allegations sufficient
“to raise a right to relief above the speculative
level.” Id. (citations omitted). “[T]he
pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.” Id.
(alteration in original) (quoting 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1216
(3d ed. 2004)).
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Bell Atl. Corp., 550 U.S. at 556). In reviewing a
complaint under this standard, the court must accept as true
the allegations of the complaint in question, Hospital
Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976),
as well as construe the pleading in the light most favorable
to the plaintiff and resolve all doubts in the
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969).
allegations in this complaint arise out of incidents which
occurred in 2010. ECF No. 1 at 11-12. Plaintiff states that
these same incidents formed the basis of a previous complaint
filed in this district. See Patkins v. Gonzales,
2:10-cv-03440 KJM DAD, ECF No. 1. This earlier complaint was
dismissed without prejudice because it sought to challenge
the fact or basis of plaintiff's confinement and, as
such, was barred by the Supreme Court's decision in
Heck v. Humphrey, 512 U.S. 477 (1994). See
Patkins v. Gonzales, 2:10-cv-03440 KJM DAD, ECF Nos. 9,
13, & 31. Plaintiff's new complaint now casts these
incidents as First and Fourteenth Amendment violations and
requests monetary damages. ECF No. 1 at 14.
review of the complaint and the procedural history of these
claims, it is apparent that these claims are barred by the
statute of limitations. The applicable statute of limitations
starts to run when a plaintiff knows or has reason to know of
the injury that is the basis of his action - typically the
date on which the injury actually occurs. See Ward v.
Westinghouse Can., 32 F.3d 1405, 1407 (9th Cir. Cal.
1994); Douglas v. Noelle, 567 F.3d 1103, 1109 (9th
Cir. 2009). Actions arising under section 1983 look to the
forum state's statute of limitations. Wallace v.
Kato, 549 U.S. 384, 387 (2007). In California the
statute of limitations for personal injury actions is two
years. Cal. Civ. Proc. Code § 335.1. The California Code
of Civil Procedure provides that this limitation period is
subject to two year tolling for prisoners who are serving
less than a life sentence. Cal. Civ. Proc. Code §
352.1(a). California courts have read out the “less
than life” limitation. See Jones v. Blanas,
393 F.3d 918, 928 n.5 (9th Cir. 2004). Accordingly, plaintiff
had four years from the day his injuries accrued to bring
latest injury alleged in the complaint occurred on May 20,
2010. ECF No. 1 at 12. This action was not filed until
September 8, 2015 - well outside the four year statute of
limitations. The court notes that plaintiff's previous
case in this district which arose out of these same injuries
was dismissed without prejudice and, therefore, does not toll
the statute of limitations. This is because California treats
an action dismissed without prejudice as if “no action
had been brought”, unless otherwise specified by
statute. See Wood v. Elling Corp., 20 Cal.3d 353,
359 (1977). Nor does federal law provide any tolling relief.
“[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 v. Henderson, 227 F.3d 1009, 1011 (7th Cir.
is an added complication in this case. Included among the
numerous exhibits to plaintiff's complaint is a state
habeas decision from the Amador County Superior Court dated
February 5, 2015. ECF No. 1 at 81. The decision denies
plaintiff's requested habeas relief (id.) and is
followed in the exhibit list by a subsequent, summary denial
by the California Court of Appeal for the Third Appellate
district dated February 26, 2015. Id. at 83. In some
circumstances, equitable tolling may apply where a plaintiff
has spent time pursuing remedies in a different forum before
filing in federal court. See Martell v. Antelope Valley
Hosp. Med. Ctr., 67 Cal.App.4th 978, 985 (1998)
(“[u]nder equitable tolling, the statute of limitations
in one forum is tolled as a claim is being pursued in another
forum”). The current complaint is not saved by the
state habeas petition, however. The superior court's
denial indicates that plaintiff filed his ...