United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS AS UNTIMELY RE: DKT.
HAYWOOD S. GILLIAM, JR., UNITED STATES DISTRICT JUDGE
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
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.
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.
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. 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.
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.
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.
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.
September 12, 2018,  plaintiff filed the instant action. Dkt.
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.
Standard of Review
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)).
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).
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, ...