United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding without counsel and in forma
pauperis in an action brought under 42 U.S.C. § 1983. He
has filed an amended complaint (ECF No. 11) and the court
must screen it.
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and internal quotations omitted), superseded by statute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).
alleges that, on June 29, 2011, defendants subjected him to
excessive force while they were escorting him. ECF No. 11 at
1-2. The allegations, taken as true, state a viable Eighth
Amendment claim. It is apparent, however, that this claim is
barred by the statute of limitations.
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). And
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 this
noted above, the alleged injury in this complaint occurred on
June 29, 2011. ECF No. 11 at 1-2. Plaintiff alleges that he
was slammed “face-first into the pavement” and,
accordingly, he had reason to know of his injury on that
date. Id. The initial complaint in this action,
however, was not filed until June 14, 2016 (ECF No. 1) -
nearly one year after the four year statute of limitations
expired. The court will not dismiss this action immediately.
Instead, plaintiff will be given an opportunity to respond to
this order and show why his claims should not be dismissed as
time barred. He should respond to this order within
twenty-one days of the date of its filing.
Summary of the Order
court has found that your claim is filed too late to be
considered. In California, prisoners have four years to bring
a personal injury action. Your claim is based on an incident
that occurred in June 2011, but you did not file this action
until June 2016. Your claims have not been dismissed yet,
however. You are being given an opportunity to respond to
this order and argue why your claims are either: (1) not
actually more than four years old, measured from the time you
filed the complaint in this action; or (2) were filed more
than four years after your injury, but are excused from the
statute of limitations (deadline) for some reason. You have
twenty-one days from the date this order is entered to file