(PC) Henderson v. Hubbard et al, No. 1:2008cv01632 - Document 36 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Defendants' 19 Motion to Dismiss be Granted, and this Action be Dismissed as Barred by the Applicable Statute of Limitations signed by Magistrate Judge Sandra M. Snyder on 2/18/2010. Referred to Judge Oliver W. Wanger. Objections to F&R due by 3/23/2010. (Sant Agata, S)
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(PC) Henderson v. Hubbard et al Doc. 36 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 7 JOHNDELL HENDERSON, Plaintiff, 8 9 vs. 1: 08 CV 01632 OWW YNP SMS (PC) FINDINGS AND RECOMMENDATIONS RE DEFENDANTS’ MOTION TO DISMISS (DOCUMENT 19) 10 11 12 SUSAN HUBBARD, et al., 13 Defendants. 14 15 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights action 16 pursuant to 42 U.S.C. § 1983. This actions been referred to this court by Local Rule 302 17 pursuant to 28 U.S.C. § (b)(1). Pending before the court is Defendants’ motion to dismiss. 18 Plaintiff has failed to oppose the motion.1 19 This action proceeds on the original complaint. In the order directing service, the court 20 found that Plaintiff stated a claim for relief against Defendants Hubbard, Grannis, Jenson, 21 Hedgpeth, Garcia, Pfeiffer, Gonzales and Chrones on Plaintiff’s claims under the First 22 Amendment and the Religious Land Use and Institutionalized Persons Act of 2000. Defendants 23 filed the motion to dismiss that is now before the court on, among other grounds, the ground that 24 25 26 The motion to dismiss was filed on June 15, 2009. Plaintiff has been granted five extensions of time in which to file opposition to the motion. 1 1 Dockets.Justia.com 1 2 Plaintiff’s claims are barred by the applicable statute of limitations. Plaintiff is an inmate in the custody of the California Department of Corrections and 3 Rehabilitation at Kern Valley State Prison. The complaint sets forth allegations that Plaintiff has 4 been denied conjugal visits, in violation of his right to the free exercise of his religious beliefs. 5 Essentially, Plaintiff’s claim is that, as a Muslim, he is required to engage in sexual relations with 6 his wife. Plaintiff’s failure or inability to do so violates the tenets of his religious beliefs. 7 Plaintiff contends that the CDCR’s policy of denying conjugal visits to inmates with a life 8 sentence violates the First Amendment and the Religious Land Use and Institutionalized Persons 9 Act (RLUIPA). 10 The facts of the complaint, taken as true, indicate that Plaintiff was received into CDCR 11 custody in June of 1998. Plaintiff was sentenced to 297 years, including nine 25 to life 12 sentences. (Compl., ¶¶ 8-10.) Plaintiff was able to regularly visit with his wife at High Desert 13 State Prison from August of 1998 to March of 2003, and at Salinas Valley State Prison from 14 March of 2003 to September 21, 2005, when he was transferred to Kern Valley State Prison. 15 (Compl., ¶ 12.) At Norther Kern, “plaintiff’s wife began not to come and visit plaintiff on a 16 regular basis, because of not being able to practice the tenets of the religion of Al-Islam, which is 17 to establish sexual relations with each other.” Id. 18 Plaintiff specifically alleges that he filed a challenge to the enforcement of the applicable 19 regulations that prohibit Plaintiff from participating in conjugal visits. 2 Plaintiff filed an inmate 20 grievance on September 26, 2006. All of the named defendants in this action denied Plaintiff’s 21 grievance at some level. Plaintiff’s grievance was ultimately denied at the Final, Director’s level 22 of review. Plaintiff’s argument in his grievance, as in his complaint, is that the regulation 23 Cal. Admin. Code tit. 15, § 3177 (b)(2) prohibits conjugal visits for inmates who do not have a parole date established by the Board of Prison Terms, are serving a sentence of life without the possibility of parole, or are designated close B custody. Plaintiff, by his own allegation, is serving a 297 year sentence, including nine 25 to life sentences. Plaintiff makes no allegations that he has received a parole date set by the Board of Prison Terms. 2 24 25 26 2 1 prohibiting conjugal visits for inmates with a life sentence creates a substantial burden on 2 Plaintiff’s ability to exercise his religious beliefs. 3 Defendants argue that Plaintiff’s claim is barred by the applicable statute of limitations. 4 The statute of limitations for claims brought under 42 U.S.C. § 1983 is governed by the forum 5 state’s statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266-67 6 (1985); Van Strum v. Lawn, 940 F.2d 406, 408 (9th Cir. 1991). In post Wilson California, that 7 period is one year. Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704 (9th Cir. 1992). 8 Also, while federal law determines when a cause of action accrues (see Elliott v. Union City, 25 9 F.3d 800, 801-02 (9th Cir. 1994)), state law determines the applicable tolling doctrines. Id. at 10 11 802; see also Hardin v. Straub, 490 U.S. 536, 543-44 (1989). Under federal law, the limitation period begins to run when the plaintiff knows of or has 12 reason to know of the injury that is the basis for the action. Trotter v. International 13 Longshoreman’s and Warehouseman’s Union, Local 13, 704 F.2d 1141, 1143 (9th Cir. 1983). 14 Plaintiff challenged the policy at issue on September 26, 2006. Plaintiff was aware of the policy 15 before then. In paragraph 10 of his complaint, Plaintiff alleges that he was denied overnight 16 visits in June of 1998. Plaintiff goes on to alleged that “he has since been de-classified as Close 17 B, which still prevents him from participating in the family visiting program, due to having 18 multiple life sentences.” (Compl.; ¶ 11.) Plaintiff’s period began to run in June of 1998, when 19 he became aware of the reason his conjugal visits were denied. California Code of Civil 20 Procedure § 352.1 tolls the statute of limitations for two years during imprisonment. Section 21 352.1 only applies to prisoners “serving a term for less than life.” Plaintiff, by his own 22 allegation, is serving a 297 year sentence, including nine 25 to life sentences. Plaintiff makes no 23 allegation that he will be eligible for parole during his lifetime. 24 25 On January 1,2003, California Code of Civil Procedure § 335.1 became law. The new section extends the prior limitations period applicable to personal injury actions (and 26 3 1 correspondingly to federal civil rights claims, see Wilson v. Garcia, 471 U.S. 261,271-72, 276, 2 (1985)) from one year under § 340(3) to two years. SeeCal.Civ.Proc.Code § 335.1. Plaintiff does 3 not benefit from this new two-year statute of limitations; since his claims herein accrued before 4 January 1, 2003, the one-year statute governs. See Krusesky v. Baugh, 138 Cal.App.3d 562, 5 (1982) (“[S]tatute[s][are] presumed to be prospective only and will not be applied retroactively 6 unless such intention clearly applies in the language of the statute itself.”); see also Landgraf v. 7 USI Film Products, 511 U.S. 244, 265-66 (1994) (“[T]he ‘principle that the legal effect of 8 conduct should ordinarily be assessed under the law that existed when the conduct took place has 9 timeless and universal appeal.’ ). Nothing in the legislation extending California's personal-injury 10 limitations period suggests that the California Legislature intended § 335.1 to apply retroactively, 11 except to claims made by victims of terrorist actions on September 11, 2001. See Cal. Senate Bill 12 688, sections (c) & (d). Abrieu v. Ramirez, 284 F.Supp.2d 1250, 1255 (C.D. Cal. 2003). 13 Plaintiff does not fall within this narrow exception. The Ninth Circuit has held that § 335.1 does 14 not apply retroactively. Maldonaldo v. Harris, 370 F.3d 945, 955 (9th Cir. 2004). 15 Therefore, Defendants correctly argue that when Plaintiff was denied conjugal visits in 16 June of 1998, he had until June of 1999 to file his complaint. Plaintiff filed the complaint in this 17 action on October 27, 2008, over nine years later. Plaintiff’s First Amendment claim is therefore 18 barred by the applicable statute of limitations. 19 As to Plaintiff’s RLUIPA claim, Defendants note, correctly, that, though RLUIPA does 20 not contain its own statute of limitations period, it is a civil action “arising under and Act of 21 Congress enacted after [December 1, 1990].” and therefore the appropriate limitations period is 22 four years. 28 U.S.C. § 1658 (2008); Jones v. R.R. Donnelley & Sons Co., 541 U.S. 23 > 369, 382 (2004)(holding that four year statute of limitations applies if the plaintiff’s claim 24 against the defendant was made possible by a post-1990 enactment). RLUIPA was enacted in 25 September 2000, and created a new right of action which Plaintiff seeks to invoke in his 26 4 1 complaint. 42 U.S.C. § 2000cc-1. To the extent that Plaintiff raises a claim under RLUIPA, a 2 four-year statute of limitations period applies. United States v. Maui County, 298 F.Supp. 2d 3 1010, 1012-13 (D. Hawaii 2003). Plaintiff filed his complaint over five years after June of 2003, 4 when his complaint should have been filed. Accordingly, IT IS HEREBY RECOMMENDED that Defendants’ motion to dismiss be 5 6 granted, and this action be dismissed as barred by the applicable statute of limitations. These findings and recommendations are submitted to the United States District Judge 7 8 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 shall be served and filed within ten days after service of the objections. The parties are advised 13 that failure to file objections within the specified time waives all objections to the judge’s 14 findings of fact. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file 15 objections within the specified time may waive the right to appeal the District Court’s order. 16 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 IT IS SO ORDERED. 19 Dated: icido3 February 18, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 5
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