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Stevenson v. K. Holland

United States District Court, E.D. California

July 11, 2017

K. HOLLAND, et al., Defendants.


         I. Introduction

         Plaintiff Douglas J. Stevenson (“Plaintiff”), a former inmate at California Correctional Institution (“CCI”) a prison operated by the California Department of Corrections and Rehabilitation (“CDCR”) in Tehachapi, California, brings the instant civil rights action against defendants K. Holland, warden of CCI; Sergeant Foster, a supervising sergeant at CCI; Ronnie Frye, employed by CDCR as an “ISU employee” at CCI; correctional officers M. Crotty, R. Valaverde, J. Dunnahoe, V. White, A. Cantu, C. Gonzales, Alomari, and Jackson, all correctional officers at CCI; and Does 1-100. Doc. 1 (“Compl.”) at ¶6-17. Plaintiff's allegations arise from two incidents: the first, an application of pepper spray allegedly involving Defendants Dunnahoe, Valaverde, Crotty, and a Doe defendant nurse on November 11, 2012; the second, an application of physical force in the form of multiple baton strikes and kicks performed by Defendants Crotty and Does 1 and 2, observed by Defendants Gonzales, Cantu, and Foster, and the effects of which were seen and photographed by Defendant Frye.

         Defendants move to dismiss the thirteen causes of action based on those allegations. For the following reasons, Defendants' motion will be granted in part and denied in part.

         II. Background[1]

         First Incident: November 11, 2012.

         Plaintiff was an inmate at CCI on November 11, 2012. On that date, Plaintiff was transferred into CCI's secured housing unit (“SHU”) and placed with a cellmate named Bell. Compl. at ¶¶ 22-23. On the same date, Plaintiff inquired of one or more of Defendants regarding his property which had not been returned to him after the transfer. Id. at ¶ 24. Thereafter, Defendants Dunnahoe and Valverde emptied both of their pepper spray canisters at Plaintiff and his cellmate through the port in their cell door without any good cause for doing so. Id. at ¶¶ 24-25. Defendant Crotty offered his pepper spray canister to Defendants Dunnahoe and Valverde. Id. at ¶ 24.[2] Defendant White observed Defendants Dunnahoe and Valverde apply pepper spray to Plaintiff and did not interfere. Id.

         Defendant Crotty then took Plaintiff to a holding cell, “raised up [Plaintiff's] handcuffs and threw him head-first into the cell with such force that [Plaintiff's] face slammed into the cell's back fence, injuring [Plaintiff's] cheekbone and eye….” Compl. at ¶ 26. Defendant Crotty then performed a strip search of Plaintiff as part of the decontamination process. Id. at ¶ 26. Plaintiff alleges that during that process Defendant Crotty saw Plaintiff's “infirm leg with a surgical scar.” Id. at ¶ 27.

         Plaintiff informed Defendant Sgt. Foster that Defendant Crotty “slamm[ed]” Plaintiff's face into the fence. Compl. at ¶ 28. When Plaintiff was seen by examining nurse Doe, Defendant Foster instructed nurse Doe “not to document any injury.” Id. at 28.

         In order to cover up the misconduct, “Defendants falsely reported that [Plaintiff] was arguing with his cellmate and/or that there was a problem between [Plaintiff] and his cellmate, and/or that [Plaintiff] refused their orders.” Compl. at ¶ 29. Plaintiff file a prisoner grievance regarding the force applied but it was never returned. Id. at ¶ 31.[3] Based on the false report or reports by the Defendant correctional officers, Plaintiff received a rules violation report (“RVR”), prepared by Defendant Dunnahoe, resulting in a loss of 90 days of credits. Id. at ¶ 30. Plaintiff appealed the RVR and attendant loss of credits. Id. at ¶ 32. Plaintiff indicates that he “continued to follow up on his appeal status to no avail.” Id. at ¶ 32. Plaintiff does not indicate the result of the appeal.

         Second Incident: December 7, 2012.

         Following the pepper spray incident on November 11, 2012, Plaintiff was afraid to go to the shower because it required him being escorted by correctional officers to and from the shower while handcuffed. Compl. at ¶¶ 35-36. Between November 11 and December 7, 2012, Plaintiff bathed in his sink. Id. at ¶ 35. On December 7, 2012, Plaintiff elected to take a shower. Id. at ¶ 36. Defendant Crotty escorted Plaintiff on the return trip from the shower. Id. at ¶ 36. During that trip, while Plaintiff was handcuffed behind his back, Plaintiff asked Defendant Crotty for a spoon because Plaintiff's was broken. Id.[4] Defendant Crotty then pushed Plaintiff into a wall, then onto the ground, and then struck Plaintiff with a baton seven or eight times, purposefully aiming at Plaintiff's injured leg. Id. Defendants Gonzales and Cantu watched the incident without intervening despite Plaintiff's pleas for help. Id. Two other guards, unknown to plaintiff, joined in on the beating. Id. The first struck Plaintiff with a baton several times (appearing to also hit Defendant Crotty in the hand)[5] and stomped on Plaintiff. Id. The second unknown guard stomped on Plaintiff. Id.

         Defendant Crotty and the Doe defendant correctional officers stopped beating plaintiff when Defendant Sgt. Foster arrived on the scene. Id. at ¶ 37. Plaintiff was then placed in a holding cell. Id. Defendant Sgt. Foster reprimanded Defendant Crotty for being part of a second physical confrontation with Plaintiff. Id. Defendant Sgt. Foster “asked [Defendant Crotty] what [Defendant Crotty] wanted [Defendant Sgt. Foster] to do.” Id. Defendant Crotty “responded that he didn't care ‘what the fuck' [Defendant Sgt. Foster] charged [Plaintiff] with, and slammed a nearby locker.” Id.

         Defendant Sgt. Foster interviewed Plaintiff about the incident and recorded the interview. Compl. at ¶ 39. Plaintiff told Defendant Sgt. Foster that Plaintiff had done nothing wrong and that the guards beat him for no reason. Id. Plaintiff “begged” Defendant Sgt. Foster to be permitted to take a lie detector test to prove the truth of his statement. Id. Plaintiff was never given a lie detector test and Defendant Sgt. Foster never recorded the offer to take one in his report. Id. at ¶ 41. Plaintiff refused to identify any of the correctional officers who beat him out of fear for his safety. Id. at ¶ 40. Defendant Sgt. Foster “knew [Defendant Crotty] was the one who had beaten [Plaintiff]” but used Plaintiff's refusal to identify the officers as a pretext not to take action against Defendant Crotty. Id.

         After the incident, Defendant Sgt. Foster authored Defendant Crotty's report for him. Compl. at ¶¶ 41-42. The report was false and Defendants Sgt. Foster and Crotty were aware of its falsity. Id. at ¶ 42. Defendant Frye photographed Plaintiff's injuries after the incident. Id. at ¶ 43. Defendant Frye asked Plaintiff what happened and Plaintiff responded that he was beaten for no reason. Id. Defendant Frye did not include Plaintiff's explanation in his report. Id. Plaintiff declined an interview with prison internal affairs staff “out of fear of reprisal.” Id. at ¶ 46.

         Plaintiff received a RVR for the December 7, 2012 incident, resulting in a loss of 360 days credit. Compl. at ¶ 47. On December 18, 2012, Plaintiff filed a prisoner grievance regarding Defendant Crotty's use of force on December 7, 2012. Id. at ¶ 48. The prisoner grievance was returned to plaintiff for the stated reason that he failed to attach any supporting documentation. Id. On January 4, 2013, Plaintiff was provided with a final RVR regarding the December 7, 2012 incident. Id. Plaintiff resubmitted his prisoner grievance the same day, attaching the RVR. Id. Plaintiff never received a response regarding his grievance despite repeatedly having written to appeals coordinator Defendants Alomari and Jackson. Plaintiff also wrote to Defendant Warden Holland regarding the incident but never heard back.

         Plaintiff pled guilty to a criminal charge of battery of Defendant Crotty. Compl. at ¶ 60. That conviction was reversed. Id. Plaintiff was not retried on that charge.

         III. Legal Standard

         Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed where a plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

         In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015); Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008). However, the Court is not required “to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). To avoid a Rule 12(b)(6) dismissal, “a 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, 278 (2009); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The Ninth Circuit has distilled the following principles from Iqbal and Twombly:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). If a Rule 12(b)(6) motion is granted, the “district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). In other words, leave to amend should be granted unless amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002); see Petersen v. Boeing Co., 715 F.3d 276, 282 (9th Cir. 2013) (requiring that “leave to amend … be granted with extreme liberality”) (internal quotation marks omitted).

         IV. Discussion

         A. Timeliness of claims accruing on November 11, 2012

         A claim should only be dismissed pursuant to Rule 12(b)(6) based on a statute of limitations where the running of the statute of limitations is apparent "on the face of a complaint, " Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010), or where material subject to judicial notice, incorporated by reference into the complaint, or attached to the complaint indicates that a claim is necessarily barred, United States v. Ritchie, 342 F.3d 903, 907-908 (9th Cir. 2003); Gumataotao v. Director of Dep't. of Revenue and Taxation, 236 F.3d 1077, 1083 (9th Cir. 2001), and “it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim, ” Syed v. M-I, LLC, 853 F.3d 492, 507 (9th Cir. 2017) (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1207 (9th Cir. 1995)).

         1. Statute of Limitations Generally

         Section 1983 creates a federal cause of action but does not provide a specific statute of limitations. Wallace v. Kato, 549 U.S. 384, 487 (2007). Instead, Section 1983 actions borrow the limitation period and the rules governing tolling from the forum state. Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009); see Wilson v. Garcia, 471 U.S. 261, 266-67 (1985). The statute of limitations for personal injury claims applies to claims brought under Section 1983 in California. Pouncil v. Tilton, 704 F.3d 568, 573 (9th Cir. 2012); Maldonado v. Harris, 370 F.3d 945, 954-955 (9th Cir. 2004). California's limitation period for personal injury actions is two years. Cal. Code Civ. Proc. § 335.1; Pouncil, 704 F.3d at 573.

         Federal law governs the accrual of the cause of action. Douglas v. Noelle, 567 F.3d at 1109 (citing Johnson v. California, 207 F.3d 650, 653 (9th Cir. 2000). “Under federal law, accrual occurs when the plaintiff has a complete and present cause of action and may file a suit to obtain relief.” Pouncil, 704 F.3d at 573-574 (citing Wallace v. Kato, 549 U.S. 384, 387 (2007)). In other words, a claim accrues when the plaintiffs “knows or has reason to know of the injury that is the basis of the action.” Balanus v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015). Normally, an action accrues on the date of the injury. Pouncil, 704 F.3d at 574.

         After a claim has accrued, California law may operate to toll the running of the limitations period. Such is the case when a plaintiff is incarcerated for a term less than life; California Code of Civil Procedure § 352.1 tolls the statute of limitations for up to two years. The tolling ends at the first of (1) release from custody or (2) two years of tolling. Cabrera v. City of Huntington Park, 159 F.3d 374, 378-379 (9th Cir 1998).

         In addition to the statutory tolling afforded under California law, federal courts in California also apply California's equitable tolling rules in Section 1983 actions. Cervantez v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993). Under California law, “the effect of equitable tolling is that the limitations period stops running during the tolling event, and begins to run again only when the tolling event has concluded. As a consequence, the tolled interval, no matter when it took place, is tacked onto the end of the limitations period….” Lantzy v. Centex Homes, 31 Cal.4th 363, 370-371 (2003), modified (Aug. 27, 2009). California's judge-made doctrine of equitable tolling allows tolling of a claim where alternative relief was sought prior to filing suit upon a showing of: (1) “timely notice” of the first claim for relief to the defendants; (2) “lack of prejudice[ ] to the defendant[s]”; and (3) “reasonable and good faith conduct on the part of the plaintiff.” McDonald v. Antelope Valley Comm. College Dist., 45 Cal.4th 88, 102 (2008); accord Cervantes, 5 F.3d at 1275; Thomas v. Gilliand, 95 Cal.App.4th 427, 434 (Cal.Ct.App. 2002); see Elkins v. Derby, 12 Cal.3d 410, 414 (1974) (en banc) (Equitable tolling applies “when an injured person has several legal remedies and, reasonably and in good faith, pursues one.”) The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust remedies within the prison grievance system before filing a related Section 1983 action. 42 U.S.C. § 1997e(a). Filing of a prisoner grievance can place the defendants on notice of the claim. Running of the limitations period “must be tolled” during the pendency of the exhaustion process. Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005); Donoghue v. Orange County, 848 F.2d 926, 930-931 (9th Cir. 1988). As a general matter, the applicability of equitable tolling is a fact-specific inquiry, not well suited to resolution on a motion to dismiss. Pesnell v. Arsenault, 543 F.3d 1038, 1042 (9th Cir. 2008).

         2. Analysis

         The causes of action based upon the pepper spray incident on November 11, 2012 accrued on November 11, 2012. Because Plaintiff was incarcerated for a term short of life on the date of accrual, Plaintiff's claim was tolled for two years, from November 12, 2012 to November 12, 2014. The statutory period ran for two year, from November 12, 2014 to November 12, 2016. Plaintiff did not file a complaint in this action until December 6, 2016. Absent equitable tolling, the limitations period expired twenty-four days earlier, on November 12, 2016.

         Defendants argue that Plaintiff cannot receive the benefit of statutory tolling and equitable tolling because the tolling events took place in the same period. See Doc. 19 at 4. In other words, Defendant argues that the period of equitable tolling is subsumed within the statutory tolling period. No binding authority on this question exists and district courts in this circuit are divided. See Morman v. Dyer, 2017 WL 1233329, *2 n.1 (N.D. Cal. Apr. 4, 2017) Harbridge v. Schwarzenegger, 2014 WL 8734138, *9 n.6 (C.D. Cal. Nov. 19, 2014) adopted by 2015 WL 1931676 (Apr. 28, 2015); Alder v. Sullivan, 2013 WL 3481584, *3 (E.D. Cal. July 10, 2013) adopted by 2013 WL 5946168 (Nov. 6, 2013).

         Most of the district courts that have permitted equitable tolling in addition to statutory tolling when the tolling events overlap have relied upon language from Lantzy: “[e]quitable tolling under California law operates independently of the literal wording of the [California] Code of Civil Procedure to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.”[6]E.g., Carranza v. Lewis, 2017 WL 1050538, *17-18 (N.D. Cal. Mar. 17, 2017); Beard v. Pennington, 2015 WL 7293652, *6-7 (N.D. Cal. Nov. 19, 2015); Burns v. Crook, 2008 WL 5103183, *3 (S.D. Cal. Dec. 3, 2008). Those courts have read California law regarding equitable tolling to require tacking of additional time (beyond the statutory tolling period) to the end of a limitations period when an equitable tolling event occurs during a period of statutory tolling. Carranza, 2017 WL 1050538 at *18 (“[N]o matter when [the equitable tolling event] took place, [the duration of the equitable tolling event] is tacked onto the end of the limitations period.”); Akhtar v. Mesa, 2014 WL 1922576, *7-8 (E.D. Cal. May 14, 2014); (applying tolling for the duration of the prison exhaustion process and statutory tolling to a prisoner's claim to extend the limitations period beyond four years);[7]Dawkins v. Woodford, 2012 WL ...

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