United States District Court, S.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILING
TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2) AND
CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE
March 6, 2019, Plaintiff, David Florence, an inmate currently
incarcerated at North Kern State Prison (“NKSP”)
located in Delano, California filed a civil rights Complaint
pursuant to 42 U.S.C. § 1983 (ECF No. 1). In addition,
Plaintiff filed a certified copy of his inmate trust account
statement which the Court liberally construed as a Motion to
Proceed In Forma Pauperis (“IFP”) pursuant to 28
U.S.C. § 1915(a) (ECF No. 2).
April 22, 2019, the Court GRANTED Plaintiff's Motion to
Proceed IFP and sua sponte DISMISSED his entire Complaint for
failing to state a claim upon which relief may be granted
pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A.
(ECF No. 3.) In addition, the Court found that
Plaintiff's Complaint, which was nearly one hundred and
fifty (15) pages and named forty-five (45) defendants
violated Rule 8 of the Federal Rules of Civil Procedure.
(Id. at 4-5.) Plaintiff was granted leave to file an
amended pleading in order to correct the deficiencies of
pleading identified in the Court's Order. (Id.
at 9.) On June 18, 2019, Plaintiff filed his First Amended
Complaint (“FAC”). (ECF No. 5.)
Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) &
Court previously informed Plaintiff, because he is a prisoner
and is proceeding IFP, his FAC requires a pre-Answer
screening pursuant to 28 U.S.C. § 1915(e)(2) and §
1915A(b). Under these statutes, the Court must sua sponte
dismiss a prisoner's IFP complaint, or any portion of it,
which is frivolous, malicious, fails to state a claim, or
seeks damages from defendants who are immune. See Lopez
v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en
banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.
Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)
(discussing 28 U.S.C. § 1915A(b)). “The purpose of
[screening] is ‘to ensure that the targets of frivolous
or malicious suits need not bear the expense of
responding.'” Nordstrom v. Ryan, 762 F.3d
903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford
Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.
standard for determining whether a plaintiff has failed to
state a claim upon which relief can be granted under §
1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
Procedure 12(b)(6) standard for failure to state a
claim.” Watison v. Carter, 668 F.3d 1108, 1112
(9th Cir. 2012); see also Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (noting that screening
pursuant to § 1915A “incorporates the familiar
standard applied in the context of failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6)”). Rule
12(b)(6) requires a complaint to “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) (internal quotation
marks omitted); Wilhelm, 680 F.3d at 1121.
42 U.S.C. § 1983
42 U.S.C. § 1983 provides a cause of action for the
“deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” of the United
States. Wyatt v. Cole, 504 U.S. 158, 161 (1992). To
state a claim under § 1983, a plaintiff must allege two
essential elements: (1) that a right secured by the
Constitution or laws of the United States was violated, and
(2) that the alleged violation was committed by a person
acting under color of state law. West v. Atkins, 487
U.S. 42, 48 (1988); Long v. Cty. of Los Angeles, 442
F.3d 1178, 1185 (9th Cir. 2006).
Statute of Limitations
the claims contained in Plaintiff's FAC, like his
original Complaint, are allegations of constitutional
violations arising from the time he was housed at the Richard
J. Donovan Correctional Facility (“RJD”) in 2013
and 2014. (See FAC at 1, 3-24.) As the Court
previously informed Plaintiff, “[a] claim may be
dismissed [for failing to state a claim] on the ground that
it is barred by the applicable statute of limitations only
when ‘the running of the statute is apparent on the
face of the complaint.'” (ECF No. 3 at 5 citing
Von Saher v. Norton Simon Museum of Art at Pasadena,
592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase
Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)).
“‘A complaint cannot be dismissed unless it
appears beyond doubt that the plaintiff can prove no set of
facts that would establish the timeliness of the
claim.'” Id. (quoting Supermail Cargo,
Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995));
see also Cervantes v. City of San Diego, 5 F.3d
1273, 1276-77 (9th Cir. 1993) (where the running of the
statute of limitations is apparent on the face of a
complaint, dismissal for failure to state a claim is proper,
so long as Plaintiff is provided an opportunity to amend in
order to allege facts which, if proved, might support
tolling); see also Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg'l Planning Agency, 216 F.3d 764, 788 (9th
Cir. 2000) (court may raise the defense of statute of
limitations sua sponte), overruled on other grounds by
Gonzalez v. Arizona, 677 F.3d 383, 389 (9th Cir. 2011)
(en banc); Hughes v. Lott, 350 F.3d 1157, 1163 (11th
Cir. 2003) (upholding sua sponte dismissal under 28 U.S.C.
§ 1915(e)(2)(B) of prisoner's time-barred
section 1983 contains no specific statute of limitation,
federal courts apply the forum state's statute of
limitations for personal injury actions. Jones v.
Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Maldonado
v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Fink
v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Before
2003, California's statute of limitations was one year.
Jones, 393 F.3d at 927. Effective January 1, 2003,
the limitations period was extended to two. Id.
(citing Cal. Civ. Proc. Code § 335.1). The law of the
forum state also governs tolling. Wallace v. Kato,
549 U.S. 384, 394 (2007) (citing Hardin v. Straub,
490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927
(noting that in actions where the federal court borrows the
state statute of limitation, the federal court also borrows
all applicable provisions for tolling the limitations period
found in state law).
California law, the statute of limitations for prisoners
serving less than a life sentence is tolled for two years.
Cal. Civ. Proc. Code § 352.1(a); Johnson v.
California, 207 F.3d 650, 654 (9th Cir. 2000),
overruled on other grounds, 543 U.S. 499 (2005).
Accordingly, the effective statute of limitations for most
California prisoners is three years for claims accruing
before January 1, 2003 (one year limitations period plus two
year statutory tolling), and four years for claims accruing
thereafter (two year limitations period plus two years
statutory tolling). In addition, the limitations period for
prisoners is tolled while the “prisoner completes the
mandatory exhaustion process.” Brown v.
Valoff, 422 F.3d 926, 943 (9th Cir. 2005).
the length of the limitations period, however, “the
accrual date of a § 1983 cause of action is a question
of federal law that is not resolved by reference to state
law.” Wallace, 549 U.S. at 388;
Hardin, 490 U.S. at 543-44 (federal law governs when
a § 1983 cause of action accrues). “Under the
traditional rule of accrual ... the tort cause of action
accrues, and the statute of limitation begins to run, when
the wrongful act or omission results in damages.”
Wallace, 549 U.S. at 391. Put another way,
“[u]nder federal law, a claim accrues when the