United States District Court, C.D. California
Present: Hon. Michael R. Wilner, U.S. Magistrate Judge.
CIVIL MINUTES - GENERAL
ORDER TO SHOW CAUSE RE: DISMISSAL
is a civil rights action involving a state prisoner. The
Court granted Plaintiff leave to proceed in forma
pauperis. Pursuant to 28 U.S.C. § 1915A(a), the
Court reviewed the complaint to determine whether it should
be dismissed for failure to state a claim upon which relief
may be granted.
Court's primary, preliminary concern is whether
Plaintiffs claims are untimely and therefore barred by the
relevant statute of limitations. Plaintiff is ordered to show
cause why the action should not be summarily dismissed on
Plaintiff alleges that several correctional officers at the
state prison in Lancaster retaliated against him for
appealing the denial of a transfer to a different facility.
The complaint identifies two separate acts of retaliation.
first is that officers threatened to send Plaintiff to a
higher security yard and placed him in disciplinary detention
(confined to quarters, or CTQ status). That occurred on July
28, 2015. (Complaint at ¶¶ 10-11.) Second,
Plaintiff alleges that he was actually sent to a higher level
yard at the Lancaster prison "for retaliatory and
arbitrary reasons." The transfer was on August 27, 2015.
(Complaint at ¶ 20.)
complaint alleges that Plaintiff filed additional grievances
and administrative appeals against prison staff owing to the
transfer and disciplinary detention. However, Plaintiff
presents no allegation of other misconduct or actions in
violation of Plaintiffs rights that sound in retaliation
after the July and August 2015 incidents.
Plaintiff appears to have signed and submitted his complaint
for filing in this federal court on October 1, 2019.
That's more than four years after the allegedly tortious
conduct described in the complaint.
Federal civil rights claims are subject to the forum
state's statute of limitations for personal injury torts.
Wilson v. Garcia, 471 U.S. 261, 279-80 (1985);
Marks v. Parra, 785 F.3d 1419 (9th Cir. 1986);
Canatella v. Van de Kamp, 486 F.3d 1128, 1132 (9th
Cir. 2007). Under California Code of Civil Procedure §
335.1, the limitations period for such an action is two
years. Maldonado v. Harris, 370 F.3d 945, 954-55
(9th Cir. 2004); Jackson v. Barnes, 749 F.3d 755,
761 (9th Cir. 2014) ("the applicable statute of
limitations under California law is two years" for
Section 1983 claim).
addition, federal courts must give effect to a state's
tolling provisions, including the toling of a state statute
of limitations during imprisonment. Douglas v.
Noelle, 567 F.3d 1103, 1009 (9th Cir. 2009). California
Code of Civil Procedure § 352.1(a) provides a maximum
toling period of two years for a plaintiff in custody.
total, then, an incarcerated or committed inmate's civil
rights claim must typically be brought within four years of
the alleged infringement. Jackson v. Fong, 870 F.3d
928, 936 (9th Cir. 2017); McClellan v. Lozano, 773
Fed.Appx. 942, 943 (9th Cir. 2019) (same).
Under federal law, "a claim accrues when the plaintiff
knows or has reason to know of the injury which is the basis
of the action." TwoRivers v. Lewis, 174 F.3d
987, 991 (9th Cir. 1999). A federal court may dismiss an
action as time-barred based on the face of the complaint.
Sinyan v. Swedish Hospital Medical Ctr., 482
Fed.Appx. 209, 211 (9th Cir. 2012) (affirming dismissal of
untimely claims of pro se litigant); Harris v.
City of Vista, 402 Fed.Appx. 267 (9th Cir. 2010) (same).
plain reading of Plaintiffs complaint establishes that, even
if his claims against the officers state a legitimate cause
of action, the action is untimely on its face. Plaintiff was
clearly aware of the adverse actions (CTQ status, transfer)
in real time that allegedly constituted retaliation for his
earlier protected conduct. TwoRivers, 174 F.3d at
991. That alleged retaliation occurred in July and August
2015. Yet, he waited more than four years to initiate this
federal action. Jackson, 870 F.3d at 936;
McClellan, 773 Fed.Appx. at 943. His continued acts
to present and exhaust new claims in the prison
administrative systein do not affect the timeliness of when
his underlying claims (a) accrued and (b) needed to be
presented in federal court.
Plaintiff is therefore ordered to show cause why the action
should not be dismissed as untimely on its face. Plaintiff
may discharge this order by submitting a statement (not to
exceed five pages) explaining why he contends that his action