United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in this action
brought under 42 U.S.C. § 1983. Defendant Dr. Reginald
Gowans died and the executor of his estate, Daphne Gowans,
has been substituted as defendant. ECF No. 49. She moves to
dismiss, arguing that this case was initiated beyond the
applicable statutes of limitations. ECF No. 50. For the
reasons that follow, the motion to dismiss must be granted.
alleges that Dr. Gowans violated his federal rights by: (1)
placing “brackets” on plaintiff “for no
other reason but to continue the on-going pain and mental
stress as the brackets weren't necessary”; (2)
“pull[ing] a perfectly good (left rear) Molar”;
and (3) removing the brackets “in a very rough and
harsh manner” leaving plaintiff's gums
“thoroughly cut, swollen and bleeding and very much in
pain.” ECF No. 5 at 7-8. This conduct allegedly
occurred between July 9, 2009 and July 29, 2009. Id.
Plaintiff alleges that these actions constituted deliberate
indifference to his serious medical needs in violation of the
Eighth Amendment and professional negligence. Id. at
The Motion to Dismiss
moves to dismiss this action pursuant to Federal Rule of
Civil Procedure 12(b)(6). In considering such a motion, the court
accepts all allegations of material fact in the complaint as
true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).
The court also construes the alleged facts in the light most
favorable to the plaintiff. Barnett v. Centoni, 31
F.3d 813, 816 (9th Cir. 1994) (per curiam). In addition, pro
se pleadings are held to a less stringent standard than those
drafted by lawyers. Erickson, 551 U.S. at 94.
However, legally conclusory statements, not supported by
actual factual allegations, need not be accepted.
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949-50 (2009). The factual allegations must present a
plausible claim for relief to survive dismissal. Id.
argues that the case must be dismissed because it is untimely
under applicable statutes of limitation. Section 1983 does
not have its own limitations period, so courts use the forum
state's personal injury statute of limitations, plus any
applicable state tolling rules that are not inconsistent with
federal law. Pouncil v. Tilton, 704 F.3d 568, 573
(9th Cir. 2012); Jones v. Blanas, 393 F.3d 918, 927
(9th Cir. 2004). In California, the personal injury
limitations period is two years. Cal. Civ. Proc. Code §
335.1. To this period, an additional two years are added if
the plaintiff is incarcerated serving less than a life
sentence. Id. § 352.1(a). It is not clear what
sentence plaintiff is serving in this action, so, for the
purposes of this motion, the court assumes that he is
entitled to tolling under § 352.1(a).
law governs the accrual of a § 1983 cause of action.
Pouncil, 704 F.3d at 573-74. Under federal law, a
claim accrues when the plaintiff knew or had reason to know
of the injury complained of. Id. at 274. In sum,
absent any other tolling, plaintiff was required to file his
Eighth Amendment claim against defendant within four years of
medical malpractice claim against defendant is governed by
California Code of Civil Procedure § 340.5, which
provides that such claims must be brought within one year
after the plaintiff discovers, or through reasonable
diligence should have discovered, the injury, whichever
occurs first. Thus, with the tolling provided by §
352.1(a), and absent any other tolling, the claim is governed
by a limitations period of three years.
claims are additionally tolled during the federally-mandated
administrative exhaustion process. Brown v. Valoff,
422 F.3d 926, 942-43 (9th Cir. 2005). Plaintiff exhausted his
claim against defendant on January 27, 2010. ECF No. 50-2 at
alleges that, on July 21, 2009, “Dr. Nouged told
Plaintiff (bluntly) ‘the brackets in your mouth have
absolutely no therapeutic purpose at all. They're in
there solely to keep your mouth shut.” ECF No. 5 at 8.
He also alleges that he suffered immediate pain, swelling,
and bleeding from the removal of the brackets on July 29,
2009. Id. Plaintiff's allegations thus indicate
that he knew, or should have known, of defendant's
inadequate care by July 29, 2009, at the latest, and
plaintiff does not argue otherwise. Because the limitations
period was subsequently tolled while plaintiff pursued
administrative exhaustion of the claims, it began to run on
January 27, 2010, when exhaustion was completed. Accordingly,
the period expired on the medical malpractice claim on
January 27, 2013 and on the Eighth Amendment claim on January
25, 2014. Plaintiff initiated this action on July 9, 2014.
ECF No. 5.
absent any further tolling, the case is untimely. Plaintiff
argues that this case is simply a continuation of an earlier
action he filed on May 7, 2010, in which he raised the same
claims. ECF No. 55 at 3. Plaintiff acknowledges that the
earlier action was dismissed without prejudice on March 31,
2014 due to his failure to prosecute. Id.;
see E.D. Cal. Case No. 2:10-cv-01133-KJM-EFB, ECF
No. 56. Thus, the court must consider whether the limitations
periods may be equitably tolled due to the pendency of the
earlier federal action.
§ 1983 action, the court must also apply the equitable
tolling rules of the forum state. Jones v. Blanas,
393 F.3d at 927. In California, when a plaintiff pursues
identical claims in two different cases, the limitations
period may be equitably tolled where the earlier case was
brought in a different forum (and where certain other factors
are present). Mitchell v. Snowden, No. 2:15-cv-1167
TLN AC P, 2016 U.S. Dist. LEXIS 76033, at *9-10 (E.D. Cal.
June 10, 2016) (citing Martell v. Antelope Valley Hosp.
Med. Ctr., 67 Cal.App.4th 978, 985 (1998)). As
plaintiff's earlier case was brought in the same forum
(this court), this equitable tolling principle does not apply
may also be tolled during the pendency of a prior action in
the same forum under the narrow “Bollinger
rule.” Id. at *11-12; see Bollinger v.
Nat'l Fire Ins. Co., 25 Cal. 399, 410 (1944). This
rule is applied in situations where court errors and/or
dilatory tactics by the defendant thwarted plaintiff's
pursuit of the earlier action despite the plaintiff's
diligence. Id. Central to application of the rule is
that the plaintiff would otherwise be shut out of court for
reasons outside her control. Hull v. Central Pathology
Serv. Med. Clinic, 28 ...