(PC) Watkins v. Singh et al, No. 2:2012cv01343 - Document 68 (E.D. Cal. 2014)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 06/26/14 ORDERING that plaintiff's motion for the court to used its "judicial authority" to serve his complaint on defendants Caraway and Spears be dism issed and this action be closed. Also, RECOMMENDING that defendants' amended motion to dismiss 60 be granted. Defendants' Caraway and Spears be dismissed; and this action be closed. Motion 60 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NOEL KEITH WATKINS, 12 Plaintiff, 13 14 v. ORDER AND VAMIL SINGH et al., 15 No. 2:12-cv-1343 GEB DAD P FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 17 18 42 U.S.C. § 1983. This matter is before the court on a motion to dismiss brought on behalf of 19 defendants Johnson and Rosario. Plaintiff has filed an opposition to the motion, and defendants 20 have filed a reply. BACKGROUND 21 Plaintiff is proceeding on an amended complaint against defendants Johnson, Rosario, 22 23 Caraway, and Spears.1 On March 19, 2013, the court screened plaintiff’s complaint and found 24 that it appeared to state cognizable claims against defendant Johnson for retaliation and for failure 25 to protect and against defendant Rosario for failure to protect. (Doc. No. 36) 26 1 27 28 Defendants Caraway and Spears have not yet appeared in this action. To date, plaintiff has not submitted the necessary documents to effect service on them. For the reasons discussed herein, the court will recommend dismissal of these defendants pursuant to Federal Rule of Civil Procedure 4(m). 1 1 ANALYSIS Defendants have moved to dismiss plaintiff’s complaint as barred by the applicable statute 2 3 of limitations. Specifically, defense counsel contends the alleged actions that plaintiff complains 4 about took place more than two decades ago in 1990, but that plaintiff did not file his complaint 5 in this action until 2012. (Defs.’ Mem. of P. & A. 1-9.) In opposition to defendants’ motion, 6 plaintiff argues that he is entitled to equitable tolling of the statute of limitations because he 7 received threats from prison officials and inmates whenever he filed a lawsuit. (Pl.’s Opp’n to 8 Defs.’ Mot. to Dismiss at 1-11.) For the reasons set forth below, the court will recommend that 9 defendants’ motion to dismiss this action as time-barred be granted. 10 I. Statute of Limitations for 42 U.S.C. § 1983 11 Because § 1983 does not contain a specific statute of limitations, federal courts apply the 12 forum state’s statute of limitations for personal injury actions. See Jones v. Blanas, 393 F.3d 918, 13 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Fink v. Shedler, 192 14 F.3d 911, 914 (9th Cir. 1999). Before 2003, California’s statute of limitations for personal injury 15 actions was one year. Jones, 393 F.3d at 927. Effective January 1, 2003, however, in California 16 that limitations period is now two years. See id. Federal courts also apply the forum state’s laws 17 with respect to tolling of the statute of limitations insofar as state law is not inconsistent with 18 federal law. Jones, 393 F.3d at 297. Under California law, the statute of limitations is tolled for 19 up to two years where the cause of action accrues while the plaintiff is in prison. See Cal. Civ. P. 20 Code § 352.1. 21 Unlike the length of the statute of limitations or tolling, federal courts apply federal law to 22 determine when a § 1983 cause of action accrues. Under federal law, a § 1983 action accrues, 23 and the statute of limitations begins to run, when the defendants’ alleged wrongful act or 24 omission causes damage(s). See Wallace v. Kato, 549 U.S. 384, 388 (2007). In this regard, “a 25 claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of 26 the action.” Maldonado, 370 F.3d at 955. 27 ///// 28 ///// 2 1 2 II. Discussion The court may dismiss a claim under Rule 12(b)(6) on the grounds that it is barred by the 3 applicable statute of limitations when “the running of the statute is apparent on the face of the 4 complaint.” Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006). See also 5 Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (a court may grant a motion to 6 dismiss based on the statute of limitations “if the assertions of the complaint, read with required 7 liberality, would not permit the plaintiff to prove that the statute was tolled.”). In this case, 8 plaintiff’s allegations against defendants Johnson and Rosario center on events that allegedly took 9 place in 1990. As such, plaintiff’s cause of action accrued in 1990, and he had up to four years 10 (the two-year limitations period plus the two-year statutory tolling due to plaintiff’s incarceration) 11 to file his § 1983 action in this court. However, plaintiff did not file this action until May 17, 12 2012, nearly two decades after the statute of limitations for doing so had expired. Neither party 13 appears to dispute, and the undersigned finds, that this action is untimely unless plaintiff is 14 entitled to equitable tolling. 15 Generally speaking, whether equitable tolling applies in a case is not amenable to 16 resolution on a motion to dismiss because the determination often depends on matters outside of 17 the pleadings. See Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993). However, 18 where factual and legal issues are sufficiently clear to permit the court to determine as a matter of 19 law that the equitable tolling doctrine cannot be successfully invoked, the court may dismiss an 20 action on a Rule 12(b)(6) motion. See id. at 1276-77; Supermail Cargo v. United States, 68 F.3d 21 1204, 1206 (9th Cir. 1995). For the reasons discussed below, the court finds that it is clear from 22 the complaint and matters subject to judicial notice that plaintiff in this case is not entitled to the 23 over fifteen years of equitable tolling of the statute of limitations that it would take to render this 24 action timely filed. 25 Under California law, a plaintiff must meet three conditions before he is entitled to 26 equitable tolling of the statute of limitations: (1) he must have diligently pursued his claim; (2) 27 that plaintiff is left without a judicial forum for his claims must be the result of forces beyond his 28 control; and (3) the defendants must not be prejudiced by the application of equitable tolling. See 3 1 Bollinger v. National Fire Insurance Co., 25 Cal. 2d 399, 406-11 (Cal. 1944); Rose v. Hudson, 2 153 Cal. App. 4th 641, 655-56 (2007) (discussing the Bollinger rule of equitable tolling); Hull v. 3 Central Pathology Serv. Med. Clinic, 28 Cal. App. 4th 1328, 1334-35 (1994) (same). “The 4 fundamental purpose underlying statutes of limitations is to protect defendants from having to 5 defend stale claims by providing notice in time to prepare a fair defense on the merits.” See 6 Downs v. Dep’t of Water & Power, 58 Cal. App. 4th 1093, 1099-1100 (1997). 7 In this case, the court finds that plaintiff was not diligent in the pursuit of his claims. 8 Specifically, there is no question that plaintiff has long been aware of the facts underlying his 9 claims against the defendants. According to plaintiff himself, he filed a § 1983 action in the mid- 10 1990s and therein requested damages, an injunction, and a restraining order. (Am. Compl. at 15 11 & Ex. 1 5-13) According to plaintiff, shortly thereafter prison officials allegedly took plaintiff’s 12 legal materials and, when he informed the court of these circumstances, the District Judge 13 assigned to that case purportedly advised him to re-file his legal action at a later date. (Id.) 14 Presumably, plaintiff is referring to his prior action filed in this court and entitled Watkins v. 15 White, 2:96-cv-1497 DFL JFM P in which he named as defendants Johnson, Rosario, Caraway 16 and others prison officials.2 Even assuming plaintiff’s allegations about prison officials confiscating his property while 17 18 he was pursuing his previously filed action are true, plaintiff acknowledges that prison officials 19 returned his legal materials to him five months after they were allegedly seized. (Am. Compl. at 20 15-16) Here, plaintiff has not adequately explained why he then waited so many years to re-file 21 his lawsuit. In this regard, even if the court granted plaintiff equitable tolling for the period he 22 pursued his claims in his prior action, too much time thereafter remains unaccounted for in this 23 case. Compare Bollinger, 25 Cal. 2d at 411 (granting equitable tolling because plaintiff had done 24 all in his power to diligently prosecute his claim), with Wood v. Elling Corp., 20 Cal. 3d 353, 362 25 (1977) (denying the plaintiff the benefit of equitable tolling because he was not diligent and failed 26 2 27 28 Plaintiff has attached as an exhibit to his amended complaint the amended complaint he filed in Watkins v. White, 2:96-cv-1497 DFL JFM P. In addition, a court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 4 1 to effect service on defendants within three years). See also Hu v. Silgan Containers Corp., 70 2 Cal. App. 4th 1261, 1270 (1999) (“In the majority of cases in which courts apply the equitable 3 tolling doctrine, the plaintiff possess several legal remedies, and reasonably and in good faith 4 pursues one designed to lessen the extent of his or her injuries or damages. In these cases, if the 5 defendant is not prejudiced, the running of the limitations period is tolled as to the other available 6 remedies.”); Downs, 58 Cal. App. 4th at 1099-1100 (“A second policy underlying the statutes is 7 to require plaintiffs to diligently pursue their claims. The ‘equitable tolling doctrine evolved in 8 the 1970’s to toll statutes of limitations when defendants would not be prejudiced and plaintiffs, 9 who had several legal remedies, pursued one such remedy reasonably and in good faith.”). 10 To be sure, in plaintiff’s amended complaint and in his opposition to defendants’ pending 11 motion to dismiss plaintiff contends that he received threats from prison officials and was told not 12 to file or litigate any legal actions. Plaintiff’s allegations in this regard, however, are vague and 13 conclusory and suggest an implausible scenario – that for two decades unspecified prison officials 14 and inmates at three separate prisons threatened plaintiff to such a degree that he felt he could not 15 file this civil rights lawsuit. In fact, plaintiff’s litigation record in this court demonstrates that he 16 was able to file and pursue litigation during the very period of time he suggests here that he could 17 not. Specifically, the undersigned notes that from 1990 to 2011, plaintiff filed at least eight other 18 lawsuits in this court. See Watkins v. Borg, No. 2:90-cv-1098 DFL PAN P; Watkins v. White, 19 No. 2:96-cv-0380 DFL JFM P; Watkins v. White, 2:96-cv-1497 DFL JFM P; Watkins v. Daly, 20 No. 2:06-cv-0685 MCE DAD P; Watkins v. Knowles, No. 2:09-cv-0363 WBS DAD P; Watkins 21 v. Monday, No. 2:11-cv-1327 GEB KJN P; Watkins v. Singh, No. 2:11-cv-1689 MCE EFB P; 22 Watkins v. Dickinson, No. 2:11-cv-1386 CMK P. 23 Although plaintiff did not prosecute some of these cases to their conclusion, he pursued 24 others to judgment demonstrating that he could have filed this lawsuit far earlier. For example, in 25 Watkins v. Daly, No. 2:06-cv-0685 MCE DAD P, petitioner filed a 197-page petition for writ of 26 habeas corpus challenging the Board of Parole Hearings’ decision to deny him parole. (Id., Doc. 27 1) His traverse to the respondent’s answer was 94 pages long, and his objections to the court’s 28 findings and recommendations were also 94 pages in length. (Id., Doc. Nos. 15 & 27) According 5 1 to the record in that case, before plaintiff filed his petition he filed petitions for writ of habeas 2 corpus in the Solano County Superior Court, the California Court of Appeal, and the California 3 Supreme Court in order to exhaust his claims before coming to federal court. (Id., Doc. No. 25) 4 In light of plaintiff’s litigation history, the court finds plaintiff’s failure to file and pursue 5 this lawsuit sooner was unreasonable and demonstrates unequivocally his lack of diligence in 6 pursuing his claims in this action. Having so concluded, the court finds that plaintiff is not 7 entitled to equitable tolling of the statute of limitations and declines to address the remaining two 8 requirements of the equitable tolling doctrine. See Wood, 20 Cal. 3d at 361 (all three elements 9 must be present before equitable tolling will apply); Hull, 28 Cal. App. 4th at 1336, n.7 (because 10 plaintiff failed to meet first two prongs for equitable tolling court need not determine third prong 11 of whether defendants would be prejudiced). 12 In sum, the undersigned finds that plaintiff’s claims against defendants Johnson and 13 Rosario arising from alleged events that took place back in 1990 are time-barred. In addition, for 14 the reasons discussed above, the court finds that the granting of leave to amend in this case would 15 be futile. See Chaset v. Fleer/Skybox Int’l, 300 F.3d 1083, 1088 (9th Cir. 2002) (there is no need 16 to prolong the litigation by permitting further amendment where the “basic flaw” in the 17 underlying facts as alleged cannot be cured by amendment); Lipton v. Pathogenesis Corp., 284 18 F.3d 1027, 1039 (9th Cir. 2002) (“Because any amendment would be futile, there was no need to 19 prolong the litigation by permitting further amendment.”). Accordingly, defendants’ motion to 20 dismiss this action as barred by the statute of limitations should be granted. 21 OTHER MATTERS 22 On September 18, 2013, the court ordered the United States Marshal to serve plaintiff’s 23 amended complaint on the defendants. The Marshal was unable to effect service on defendants 24 Caraway and Spears because these defendants were no longer employed by CSP-Sacramento. 25 The court ordered plaintiff to provide the court with additional information to serve these 26 defendants and granted him sixty days to complete and submit the necessary documents to effect 27 service. On January 24, 2014, plaintiff filed a motion for a sixty-day extension of time to obtain 28 the addresses for defendants Caraway and Spears. On February 7, 2014, the court granted 6 1 plaintiff’s motion. That sixty-day period has long since expired, and plaintiff has not submitted 2 the necessary service documents. He has only recently filed a motion requesting the court to use 3 its “judicial authority” to serve defendants Caraway and Spears. 4 As the court previously instructed plaintiff, he is required to provide the court with the 5 information necessary to serve defendants Caraway and Spears. To date, he has not done so. 6 Under the circumstances of this case as set forth above, the undersigned finds that plaintiff cannot 7 show good cause for the failure to effect service on defendants Caraway and Spears. Although 8 plaintiff has had more than sufficient time to provide the court with the additional information 9 necessary to enable the United States Marshal to serve these defendants, on two separate 10 occasions plaintiff has failed to provide the court with a current addresses for them. Accordingly, 11 the court concludes that defendants Caraway and Spears should be dismissed from this action. 12 See Fed. R. Civ. P. 4(m). 13 CONCLUSION 14 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the court to use its 15 “judicial authority” to serve his complaint on defendants Caraway and Spears (Doc. No. 67) is 16 denied. 17 IT IS HEREBY RECOMMENDED that: 18 1. Defendants’ amended motion to dismiss (Doc. No. 60) be granted; 19 2. Defendants’ Caraway and Spears be dismissed; and 20 3. This action be closed. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 26 objections shall be filed and served within seven days after service of the objections. The parties 27 ///// 28 ///// 7 1 are advised that failure to file objections within the specified time may waive the right to appeal 2 the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: June 26, 2014 4 5 6 7 DAD:9 watk1343.57 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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