Alaniz v. Kevin Enterline #3821

          ORDER GRANTING MOTION TO DISMISS AS UNTIMELY RE: DKT. NO. 18

          HAYWOOD S. GILLIAM, JR., UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff, a California prisoner currently incarcerated at Avenal State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. Now pending before the Court is defendants' motion to dismiss this action as time-barred. Dkt. No. 18. Plaintiff has filed an opposition, Dkt. No. 25, and defendants have filed a reply, Dkt. No. 26. For the reasons set forth below, defendants' motion to dismiss is GRANTED.

         BACKGROUND

         I. Complaint

         According to the complaint, on August 7, 2012, defendants San Jose Police Department (“SJPD”) officers Enterline and Kirby illegally stopped and searched plaintiff and the car he was in, and used excessive force in arresting plaintiff. Plaintiff filed a successful motion to suppress the evidence, observation, and fruits of this search. Dkt. No. 1 at 3-4.

         The Court found that, liberally construed, the complaint stated cognizable Fourth Amendment claims against Defendants Enterline and Kirby for unlawful search and seizure and for the use of excessive force. Dkt. No. 1; Dkt. No. 7. In this action, plaintiff seeks $7 million in damages to compensate for his medical bills and the pain and suffering rendered by “Officer Dog Rocko, ” and to redress wrongs. Dkt. No. 1.

         II. Additional Background

         On September 14, 2012, a Santa Clara County Superior Court jury found plaintiff guilty of the misdemeanor of resisting, delaying, or obstructing a police officer (Cal. Penal Code § 148(a)(1)). Dkt. No. 18-1 (“RJN”), Exs. A and B.^[1] On September 19, 2012, plaintiff appealed his conviction and sentence, arguing that the trial court erred in denying his motion to suppress and his motion to acquit. RJN, Ex. C.

         On October 16, 2013, while the appeal was pending, plaintiff filed a government tort claim against the City of San Jose, alleging that SJPD police officers used excessive force when they arrested him on August 7, 2012. RJN, Ex. D. In his claim, plaintiff stated that he had exercised reasonable diligence in attempting to gather the necessary materials (trial transcripts, hospital and ambulance records) through appointed counsel but had been unsuccessful. He stated that appointed counsel's failure to provide the necessary records prevented him from timely filing the tort claim and that he should be entitled to delayed accrual of the claim because he was unable to ascertain his claim prior to receiving the record. Finally, plaintiff also stated that he had not yet been able to ascertain the identity of the officers who had arrested him. Id.

         On February 7, 2014, the Santa Clara County Superior Court, Appellate Division, vacated the conviction and remanded the case to determine the motion to suppress. RJN, Ex. F. The appellate division explained that if the trial court granted the motion to suppress, the conviction should be permanently vacated but if the trial court denied the motion to suppress, the case should be reset for trial. Id.

         On September 30, 2014, Judge Kenneth Shapero granted the motion to suppress pursuant to Cal. Penal Code § 1538.5. RJN, Ex. G. On October 3, 2014, Judge Shapero set aside the guilty verdict. RJN, Ex. H. On October 8, 2014, Judge Shapero dismissed the case pursuant to Cal. Penal Code § 1385. RJN, Ex. I.

         On September 12, 2018, ^[2] plaintiff filed the instant action. Dkt. No. 1.

         Plaintiff is currently incarcerated in state prison and serving an indeterminate life sentence on charges unrelated to the allegations in this complaint. Plaintiff states that he has been continuously incarcerated. Dkt. No. 25 at 3.

         DISCUSSION

         I. Standard of Review

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim. A claim may be dismissed only if ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45- 46 (1957)). When assessing the legal sufficiency of a plaintiff's claims, the court must accept as true all material allegations of the complaint and all reasonable inferences that may be drawn therefrom. Id. Dismissal is proper under Rule 12(b)(6) “only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Id. The court must also liberally construe a pro se litigant's complaint. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (quoting Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011)).

         Conclusory allegations of law are insufficient to defeat a Rule 12(b)(6) motion. Lee v. County of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). In deciding a Rule 12(b)(6) motion, the court may take judicial notice of documents whose authenticity are not questioned and of matters of public record. Id. at 688-89 (discussing Fed.R.Evid. 201). The court need not accept as true allegations that contradict matters properly subject to judicial notice. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on denial of reh'g, 275 F.3d 1187 (9th Cir. 2001).

         Although a Rule 12(b)(6) motion usually is not available to raise an affirmative defense, it may be used when the complaint contains allegations showing a complete defense or bar to recovery, such as a statute of limitations problem. See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). Dismissal on statute of limitations grounds can be granted pursuant to Rule 12(b)(6) “only if the assertions of the complaint, ...