United States District Court, E.D. California
DOUGLAS J. STEVENSON, Plaintiff,
K. HOLLAND, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS
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
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.
Incident: November 11, 2012.
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. Defendant White observed Defendants
Dunnahoe and Valverde apply pepper spray to Plaintiff and did
not interfere. Id.
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.
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.
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. 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.
Incident: December 7, 2012.
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. 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) and stomped on Plaintiff. Id. The
second unknown guard stomped on Plaintiff. Id.
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
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.
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.
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.
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.
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).
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
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).
Timeliness of claims accruing on November 11, 2012
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)).
Statute of Limitations Generally
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
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.
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).
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).
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.
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.
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.”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);Dawkins v. Woodford, 2012 WL