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 and in forma
pauperis in an action brought under 42 U.S.C. § 1983.
After dismissal of the original complaint pursuant to 28
U.S.C. § 1915A (ECF No. 5), plaintiff filed an amended
complaint (ECF No. 10) and the court must screen it.
mandates that district courts engage in a preliminary
screening of cases in which prisoners seek redress from a
governmental entity or officer or employee of a governmental
entity. 28 U.S.C. § 1915A(a). The court must identify
cognizable claims or dismiss the complaint, or any portion of
the complaint, if the complaint “is frivolous,
malicious, or fails to state a claim upon which relief may be
granted, ” or “seeks monetary relief from a
defendant who is immune from such relief.” Id.
court analyzed plaintiff's original complaint pursuant to
§ 1915A as follows:
Plaintiff claims that on April 23, 2013, defendant Whitehead
tried to “chicken hawk” plaintiff by pulling
plaintiff's hands, cuffed behind his back, over
plaintiff's head. ECF No. 1 at 3. This allegedly resulted
in a golf-ball sized bruise on plaintiff's left wrist.
Id. at 4. Plaintiff claims he was assaulted again
two months later, on June 21, 2013, by defendant Dobbs.
Id. Dobbs allegedly yanked plaintiff's right
hand through a food port and slammed plaintiff's hand.
Id. Dobbs and Whitehead then allegedly interfered
with plaintiff's ability to seek medical treatment until
July of 2013, when plaintiff was transferred to the Enhanced
Outpatient Program. Id. at 5. In July of 2017,
plaintiff allegedly learned that Whitehead's assault had
caused nerve damage to his left wrist, forearm, and elbow.
Id. at 4. Plaintiff alleges violations of his Eighth
Amendment rights to be free from excessive force and from
interference with medical care. Id. at 3.
Plaintiff's claims appear to be barred by the statute of
limitations. The applicable statute of limitations starts to
run when a plaintiff knows or has reason to know of the
injury that is the basis of his action - typically the date
on which the injury actually occurs. See Ward v.
Westinghouse Can., 32 F.3d 1405, 1407 (9th Cir. Cal.
1994); Douglas v. Noelle, 567 F.3d 1103, 1109 (9th
Cir. 2009). Actions arising under section 1983 look to the
forum state's statute of limitations. Wallace v.
Kato, 549 U.S. 384, 387 (2007). In California the
statute of limitations for personal injury actions is two
years. Cal. Civ. Proc. Code § 335.1. The California Code
of Civil Procedure provides that this limitation period is
subject to two year tolling for prisoners who are serving
less than a life sentence. Cal. Civ. Proc. Code §
352.1(a). And California courts have read out the “less
than life” limitation. See Jones v. Blanas,
393 F.3d 918, 928 n.5 (9th Cir. 2004).
Accordingly, plaintiff had four years from the day his
injuries accrued to bring this suit. Although plaintiff
claims he did not discover his nerve damage until 2017,
“a plaintiff need not realize the extent, seriousness,
or permanence of an injury for a claim to accrue.”
Doe v. County of Josephine, No. 1:12-cv-2080-CL,
2015 U.S. Dist. LEXIS 65642, *10 (Or. May 18, 2015) (citing
Soliman v. Philip Morris Inc., 311 F.3d 966, 972
(9th Cir. 2002). Thus, plaintiff's excessive force
injuries accrued back in April and June of 2013, when each
assault allegedly occurred; his medical interference injuries
accrued no later than July of 2013, when he was transferred
to the Enhanced Outpatient Program. Plaintiff did not
commence this action until April of 2018, well after the four
year statute of limitations expired. Nonetheless, plaintiff
will be permitted leave to amend in the event that he might
be able to plead facts demonstrating that his claims are not
5 at 3-4. In the amended complaint, plaintiff attempts to
correct the deficiency identified by the original screening
order by arguing that he was not aware of his injury until
2017. ECF No. 10 at 5. Plaintiff otherwise recites the same
allegations as those in the original complaint. See
Id. at 3-4. There are no new allegations curing the
deficiencies the court has identified. Thus, the amended
complaint (ECF No. 10) must be dismissed for the reasons
stated in the court's prior screening order (ECF No. 5),
as barred by the statute of limitations.
court has already afforded plaintiff a chance to amend his
complaint, yet he is no closer to stating a cognizable claim.
Consequently, it declines to offer him further opportunity to
amend. See McGlinchy v. Shell Chemical Co., 845 F.2d
802, 809-10 (9th Cir. 1988) (“Repeated failure to cure
deficiencies by amendments previously allowed is another
valid reason for a district court to deny a party leave to
it is ORDERED that the Clerk randomly assign a United States
District Judge to this case.
it is RECOMMENDED that plaintiffs amended complaint (ECF No.
10) be DISMISSED without leave to amend as barred by the
statute of limitations ...