Alaniz v. Enterline 3821

• Court: District Court, N.D. California
• Decided: January 15, 2020
• Docket: 4:18-cv-05788
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ADRIAN ALANIZ, Case No. 18-cv-05788-HSG

8 Plaintiff, ORDER GRANTING MOTION TO DISMISS AS UNTIMELY 9 v. Re: Dkt. No. 18 10 KEVIN ENTERLINE #3821, et al., 11 Defendants.

12 13 INTRODUCTION 14 Plaintiff, a California prisoner currently incarcerated at Avenal State Prison, filed this pro 15 se civil rights action under 42 U.S.C. § 1983. Now pending before the Court is defendants’ 16 motion to dismiss this action as time-barred. Dkt. No. 18. Plaintiff has filed an opposition, Dkt. 17 No. 25, and defendants have filed a reply, Dkt. No. 26. For the reasons set forth below, 18 defendants’ motion to dismiss is GRANTED. 19 BACKGROUND 20 I. Complaint 21 According to the complaint, on August 7, 2012, defendants San Jose Police Department 22 (“SJPD”) officers Enterline and Kirby illegally stopped and searched plaintiff and the car he was 23 in, and used excessive force in arresting plaintiff. Plaintiff filed a successful motion to suppress 24 the evidence, observation, and fruits of this search. Dkt. No. 1 at 3-4. 25 The Court found that, liberally construed, the complaint stated cognizable Fourth 26 Amendment claims against Defendants Enterline and Kirby for unlawful search and seizure and 27 for the use of excessive force. Dkt. No. 1; Dkt. No. 7. In this action, plaintiff seeks $7 million in 1 Rocko,” and to redress wrongs. Dkt. No. 1. 2 II. Additional Background 3 On September 14, 2012, a Santa Clara County Superior Court jury found plaintiff guilty of 4 the misdemeanor of resisting, delaying, or obstructing a police officer (Cal. Penal Code § 5 148(a)(1)). Dkt. No. 18-1 (“RJN”), Exs. A and B.1 On September 19, 2012, plaintiff appealed his 6 conviction and sentence, arguing that the trial court erred in denying his motion to suppress and 7 his motion to acquit. RJN, Ex. C. 8 On October 16, 2013, while the appeal was pending, plaintiff filed a government tort claim 9 against the City of San Jose, alleging that SJPD police officers used excessive force when they 10 arrested him on August 7, 2012. RJN, Ex. D. In his claim, plaintiff stated that he had exercised 11 reasonable diligence in attempting to gather the necessary materials (trial transcripts, hospital and 12

13 1 Defendants have filed an unopposed request for judicial notice (“RJN”), requesting that the Court take judicial notice of the following documents which are attached as exhibits to the RJN: 14 (A) document from Santa Clara County Superior Court in Case No. 1238740, People v. Adrian Alaniz (“Alaniz I”), indicating that plaintiff was found guilty of having violated Cal. Penal Code § 15 148(a)(1) on August 7, 2012; (B) transcript of the September 14, 2012 proceedings before Judge Kenneth Shapero in Alaniz I; (C) the notice of appeal and request for court-appointed lawyer filed 16 on September 19, 2012 in Santa Clara County Superior Court in Alaniz I; (D) the government tort claim filed by plaintiff with the City of San Jose on October 21, 2013; (E) an excerpt from the 17 County of Santa Clara, Rules and Regulations, Inmate Mail, printed from https://www.scccgov.org/sites/doc/services/Pages/rules.aspx; (F) the February 7, 2014 order 18 issued by the appellate division of the Santa Clara County Superior Court in Alaniz I; (G) the transcript of the October 3, 2014 proceedings before Judge Edward Lee in Alaniz I; (H) transcript 19 of the September 14, 2012 proceedings before Judge Kenneth Shapero in Alaniz I; and (I) transcript of the October 18, 2014 proceedings before Judge Kenneth Shapero in Alaniz I. Dkt. 20 No. 18-1. The Court GRANTS the request for judicial notice in its entirety. The Court takes judicial 21 notice of exhibits A, B, C, F, G, H and I to the RJN because they are documents or pleadings filed in a court and have a direct relation to the matters at issue, and because the facts set forth in these 22 pleadings or documents can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. See U.S. ex rel. Robinson Rancheria Citizens Council v. 23 Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (federal courts may “take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct 24 relation to the matters at issue”) (internal quotation marks and citation omitted); Fed. R. Evid. 201(b). The Court takes judicial notice of exhibit D to the RJN because a government claim is 25 properly the subject of judicial notice. See Roy v. Contra Costa Cty., No. 15-CV-02672-TEH, 2015 WL 5698743, at *2 n.6 (N.D. Cal. Sept. 29, 2015). The Court takes judicial notice of exhibit 26 E for the purpose of confirming that the mailing address for inmates at the Santa Clara County Department of Correction Mail Jail Complex is 885 N. San Pedro Street, San Jose, CA 95110, 27 because that is a fact that is not subject to reasonable dispute because it can be accurately and 1 ambulance records) through appointed counsel but had been unsuccessful. He stated that 2 appointed counsel’s failure to provide the necessary records prevented him from timely filing the 3 tort claim and that he should be entitled to delayed accrual of the claim because he was unable to 4 ascertain his claim prior to receiving the record. Finally, plaintiff also stated that he had not yet 5 been able to ascertain the identity of the officers who had arrested him. Id. 6 On February 7, 2014, the Santa Clara County Superior Court, Appellate Division, vacated 7 the conviction and remanded the case to determine the motion to suppress. RJN, Ex. F. The 8 appellate division explained that if the trial court granted the motion to suppress, the conviction 9 should be permanently vacated but if the trial court denied the motion to suppress, the case should 10 be reset for trial. Id. 11 On September 30, 2014, Judge Kenneth Shapero granted the motion to suppress pursuant 12 to Cal. Penal Code § 1538.5. RJN, Ex. G. On October 3, 2014, Judge Shapero set aside the guilty 13 verdict. RJN, Ex. H. On October 8, 2014, Judge Shapero dismissed the case pursuant to Cal. 14 Penal Code § 1385. RJN, Ex. I. 15 On September 12, 2018,2 plaintiff filed the instant action. Dkt. No. 1. 16 Plaintiff is currently incarcerated in state prison and serving an indeterminate life sentence 17 on charges unrelated to the allegations in this complaint. Plaintiff states that he has been 18 continuously incarcerated. Dkt. No. 25 at 3. 19 DISCUSSION 20 I. Standard of Review 21 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 22 sufficiency of a claim. A claim may be dismissed only if ‘it appears beyond doubt that the 23 plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” 24 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45- 25 2 In determining when a Section 1983 suit filed by a pro se prisoner is filed, the “mailbox” rule 26 applies. Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009). A Section 1983 complaint is considered to be filed on the date a prisoner delivered it to prison authorities for forwarding to the 27 court clerk. Houston v. Lack, 487 U.S. 266, 276 (1988). According to the proof of service, 1 46 (1957)). When assessing the legal sufficiency of a plaintiff’s claims, the court must accept as 2 true all material allegations of the complaint and all reasonable inferences that may be drawn 3 therefrom. Id. Dismissal is proper under Rule 12(b)(6) “only where there is no cognizable legal 4 theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Id. The 5 court must also liberally construe a pro se litigant’s complaint. Wilhelm v. Rotman, 680 F.3d 6 1113, 1121 (9th Cir. 2012) (quoting Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011)). 7 Conclusory allegations of law are insufficient to defeat a Rule 12(b)(6) motion. Lee v. 8 County of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). In deciding a Rule 12(b)(6) motion, the 9 court may take judicial notice of documents whose authenticity are not questioned and of matters 10 of public record. Id. at 688-89 (discussing Fed. R. Evid. 201). The court need not accept as true 11 allegations that contradict matters properly subject to judicial notice. Sprewell v. Golden State 12 Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on denial of reh’g, 275 F.3d 1187 (9th 13 Cir. 2001). 14 Although a Rule 12(b)(6) motion usually is not available to raise an affirmative defense, it 15 may be used when the complaint contains allegations showing a complete defense or bar to 16 recovery, such as a statute of limitations problem. See Jablon v. Dean Witter & Co., 614 F.2d 17 677, 682 (9th Cir. 1980). Dismissal on statute of limitations grounds can be granted pursuant to 18 Rule 12(b)(6) “only if the assertions of the complaint, read with the required liberality, would not 19 permit the plaintiff to prove that the statute was tolled.” Id. 20 II. Motion to Dismiss 21 Defendants have moved to dismiss this action as time-barred. Defendants argue that both 22 plaintiff’s excessive force claim and his unlawful search and seizure claim accrued on August 7, 23 2012, when the alleged incidents occurred, and that the two-year statute of limitations expired on 24 August 7, 2014, rendering this action time-barred. Dkt. No. 18. Plaintiff argues that he is entitled 25 to statutory tolling pursuant to Martinez v. Gomez, 137 F.3d 1124 (9th Cir. 1998), which applies 26 the version of Cal. Civ. Proc. Code § 352.1(a) that was in effect at that time.3 Plaintiff argues that 27 1 he is entitled to equitable tolling because (1) he was unaware that he could seek relief via a Section 2 1983 action until October 16, 2013; (2) he mistakenly believed that he could not seek relief until 3 he was released from prison; (3) he was unable to file this suit until his motion to suppress was 4 granted on September 30, 2014, and (4) he has shown diligence in pursuing these claims. Dkt. 5 No. 25. Defendants respond that plaintiff has conceded that he knew of the claims on August 7, 6 2012, and that plaintiff has not demonstrated any basis for tolling the statute of limitations. Dkt. 7 No. 26. 8 A. Statute of Limitations 9 Section 1983 does not contain its own limitations period.4 “Without a federal limitations 10 period, the federal courts borrow the statute of limitations for § 1983 claims applicable to personal 11 injury claims in the forum state.” TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (citing 12 Wilson v. Garcia, 471 U.S. 261, 276–79 (1985), superseded by statute on other grounds as stated 13 in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 377–78 (2004)); see also Wallace v. Kato, 14 549 U.S. 384, 387 (2007). Section 1983 actions are characterized as personal injury actions for 15 statute of limitations purposes. Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995). 16 In California, the general residual statute of limitations for personal injury actions is the two-year 17 period set forth at Cal. Civ. Proc. Code § 335.1. See Cal. Civ. Proc. Code § 335.1 (current 18 codification of residual limitations period, which is now two years; enacted in 2002). The 19 applicable statute of limitations for Section 1983 actions brought in California is therefore two 20 years. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004) (applying California’s prior 21 one-year statute of limitations to Section 1983 action). 22

23 the time the plaintiff is imprisoned, not to exceed two years. See Cal. Civ. Proc. Code § 352.1(a). In Martinez, the Ninth Circuit held that an inmate sentenced to life with the possibility of parole 24 was entitled to the tolling afforded by Cal. Civ. Proc. Code § 352(a)(3), the predecessor to the current Cal. Civ. Proc. Code § 352.1(a). Cal. Civ. Proc. Code § 352(a)(3) tolled the statute of 25 limitations for persons “in execution under the sentence of a criminal court for a term less than for life.” Martinez v. Gomez, 137 F.3d 1124, 1126 (9th Cir. 1998), as amended (May 1, 1998). 26 4 Plaintiff incorrectly reads Owens v. Okure, 488 U.S. 235 (1989), as holding that there is no statute of limitations for Section 1983 claims. Dkt. No. 25 at 2. Owens explains that while 27 Section 1983 does not contain its own limitations period, in 42 U.S.C. § 1988 Congress endorsed 1 1. Claim Accrual 2 While state law provides the statute of limitations, it is federal law that determines when a 3 cause of action accrues and the statute of limitations begins to run. Wallace, 549 U.S. at 388; 4 Belanus v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015). Under federal law, a claim generally 5 accrues when the plaintiff knows or has reason to know of the injury which is the basis of the 6 action. See TwoRivers, 174 F.3d at 991–92 (citing Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 7 1996)). But accrual ultimately depends on the substantive basis of the claim. See, e.g., Bradford 8 v. Scherschligt, 803 F.3d 382, 387–89 (9th Cir. 2015) (claim for deliberate fabrication of evidence 9 accrues when charges are fully and finally resolved and can no longer be brought against 10 defendant; here, acquittal at retrial). 11 A claim that law enforcement officers used excessive force during an arrest usually accrues 12 on the date of the arrest. See, e.g., Cabrera v. City of Huntington Park, 159 F.3d 374, 381 (9th 13 Cir. 1998) (plaintiff’s excessive force claim accrued on date of arrest because claim, if successful, 14 would not necessarily imply the invalidity of his conviction). However, because an essential 15 element of a conviction pursuant to Cal. Penal Code § 148(a)(1) is that the officer was acting 16 lawfully, Heck v. Humphrey, 512 U.S. 477 (1994)5 bars a plaintiff from raising an excessive force 17 claim until the underlying Cal. Penal Code § 148(a)(1) charges have been dismissed or the Cal. 18 Penal Code § 148(a)(1) conviction has been overturned. Rodriguez v. City of Modesto, 535 F. 19 App’x 643, 644–45 (9th Cir. 2013) (district court correctly dismissed excessive force claims as 20 barred by Heck because success on such a claim would necessarily imply that plaintiff did not 21 violate Cal. Penal Code § 148(a)(1)). As the Ninth Circuit explained in Rodriguez:

22 Under California law, an essential element of a valid § 148(a)(1) conviction is that the police officer was acting lawfully in the discharge or attempted discharge of her duties at 23 the time the defendant resisted, delayed, or obstructed the officer. See Garcia v. Superior 24 5 In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that in order to recover 25 damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a 42 U.S.C. § 1983 26 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or 27 called into question by a federal court’s issuance of a writ of habeas corpus. Heck, 512 U.S. at Court, 177 Cal.App.4th 803, 99 Cal.Rptr.3d 488, 500 (2009). A police officer is not 1 lawfully performing her duties if she arrests an individual without probable cause, see id., or uses unreasonable or excessive force on the individual at the time the defendant’s 2 unlawful resistance, delay or obstruction is occurring, see People v. Olguin, 119 Cal.App.3d 39, 173 Cal.Rptr. 663, 667 (1981). 3 Rodriguez, 535 F. App’x at 644–45.6 4 Similarly, a Fourth Amendment claim for unlawful search and seizure accrues at the time 5 of the search or seizure. Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983) (“[W]here false 6 arrest or illegal search and seizure is alleged, the conduct and asserted injury are discrete and 7 complete upon occurrence, and the cause of action can reasonably be deemed to have accrued 8 when the wrongful act occurs.”). But if the allegedly unlawful search and seizure resulted in 9 criminal charges or conviction and the charges and/or conviction are based on the evidence seized 10 in the allegedly unlawful search and seizure, Section 1983 unlawful search and seizure claims are 11 barred by Heck until the criminal charges have been dismissed or the conviction has been 12 overturned. Harvey v. Waldron, 210 F.3d 1008, 1015-16 (9th Cir. 2000), overruled in part on 13 other grounds by Wallace, 549 U.S. at 393–94 (claim that gaming devices had been unlawfully 14 searched for and seized under Fourth Amendment barred by Heck until charges for illegal 15 possession of gaming devices were dismissed); see also Whitaker v. Garcetti, 486 F.3d 572, 581, 16 583-84 (9th Cir. 2007) (plaintiffs convicted of underlying criminal charges were barred from 17 challenging search and seizure of evidence resulting from defendants’ use of wiretaps, however 18 individual plaintiff’s claims were not barred where he was never charged with a crime or 19 convicted). 20 2. Tolling 21 A federal court must also give effect to a state’s tolling provisions when applicable. See 22 Hardin v. Straub, 490 U.S. 536, 538, 544 (1989). 23 a. Statutory Tolling 24 California law provides for statutory tolling for, respectively, the time criminal charges are 25 pending and a portion of the time of imprisonment. See Cal. Gov’t Code § 945.3; Cal. Civ. Proc. 26

27 6 As an unpublished Ninth Circuit decision, Rodriguez is not precedent, but may be considered for 1 Code § 352.1(a). The statute of limitations begins to run immediately after the recognized 2 disability period ends. See Cabrera, 159 F.3d at 378–89 (applying California law). 3 Cal. Gov’t Code § 945.3 provides for tolling for the time criminal charges are pending 4 until the date of conviction and judgment. Cal. Gov’t Code § 945.3 (emphasis added); Trimble, 49 5 F.3d at 585 (“Under section 945.3 charges are ‘pending’ only until the date of judgment and 6 conviction.”). Cal. Civ. Proc. Code § 352.1(a) provides tolls the limitations period for two years 7 for the disability of imprisonment. Cal. Civ. Proc. Code § 352.1(a). Tolling under Cal. Civ. Proc. 8 Code § 352.1(a) is triggered by the plaintiff’s arrest and continues while he remains incarcerated. 9 See Elliott v. City of Union City, 25 F.3d 800, 802-03 (9th Cir. 1994). Tolling ends when the 10 prisoner is released from physical custody. See Boag v. Chief of Police, 669 F.2d 587, 589 (9th 11 Cir. 1982) (construing Oregon tolling provision similar to California’s and holding that tolling 12 ceased upon prisoner’s release on parole); Williams v. Coughlan, 244 F.2d 6, 8 (9th Cir. 1957) 13 (statute of limitations not tolled after prisoner released). 14 b. Equitable Tolling 15 California courts also toll the limitations period on equitable grounds.7 “Equitable tolling 16 under California law operates independently of the literal wording of the Code of Civil Procedure 17 to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and 18 fairness.” Jones v. Blanas, 393 F.3d 918, 928 (9th Cir. 2004) (internal quotation marks omitted; 19 quoting Lantzy v. Centex Homes, 31 Cal. 4th 363, 370 (Cal. 2003)) (holding that California’s 20 equitable tolling doctrine operates to toll a statute of limitations for a claim asserted by a 21 continuously confined civil detainee who has pursued his claim in good faith). California’s 22 equitable tolling doctrine “focuses on whether there was excusable delay by the plaintiff: if a 23 reasonable plaintiff would not have known of the existence of a possible claim within the 24 limitations period, then equitable tolling will serve to extend the statute of limitations for filing 25 7 In addition to equitable tolling, California courts also recognize and apply the doctrine of 26 equitable estoppel. “Equitable estoppel . . . focuses primarily on actions taken by the defendant to prevent a plaintiff from filing suit, sometimes referred to as ‘fraudulent concealment.’” Lukovsky, 27 535 F.3d at 1051 (emphasis in original) (citing Johnson, 314 F.3d at 414). Equitable estoppel is 1 suit until the plaintiff can gather what information he needs.” Under California’s test for equitable 2 tolling, a plaintiff must establish “‘timely notice, and lack of prejudice, to the defendant, and 3 reasonable and good faith conduct on the part of the plaintiff.’” McDonald v. Antelope Valley 4 Cmty. Coll. Dist., 45 Cal. 4th 88, 102 (Cal. 2008) (quoting Addison v. California, 21 Cal. 3d 313, 5 319 (Cal. 1978)). “[T]he effect of equitable tolling is that the limitations period stops running 6 during the tolling event, and begins to run again only when the tolling event has concluded.” 7 Lantzy, 31 Cal. 4th at 370 (emphasis in original). Equitable tolling is sparingly applied, Addison, 8 21 Cal. 3d at 316, and is “designed to prevent unjust and technical forfeitures of the right to a trial 9 on the merits when the purpose of the statute of limitations—timely notice to the defendant of the 10 plaintiff’s claims—has been satisfied,” McDonald, 45 Cal. 4th at 99 (internal quotation marks and 11 citation omitted). A state tort claim filed with a county arising out of the same facts as a 12 subsequent Section 1983 suit in federal court may justify equitable tolling if the above three-prong 13 test is met. Lucchesi v. Bar-O Boys Ranch, 353 F.3d 691, 696 (9th Cir. 2003); but see Felder v. 14 Casey, 487 U.S. 131, 140-41 (1988) (state notice of claim statutes have no applicability to Section 15 1983 actions). 16 B. Analysis 17 1. Unlawful Search and Seizure Claim 18 Plaintiff’s unlawful search and seizure claim accrued on August 7, 2012, at the time of the 19 search or seizure. See Venegas, 704 F.2d at 1146. This claim is not entitled to delayed accrual 20 under Heck because the conviction for resisting a police officer was not based on evidence seized 21 pursuant to the allegedly unlawful search and seizure. See Harvey, 210 F.3d at 1015. 22 Accordingly, the statute of limitations started to run on August 7, 2012 and expired on August 7, 23 2014, unless plaintiff is entitled to statutory or equitable tolling. See Cal. Civ. Proc. Code § 335.1 24 (two-year statute of limitations for California personal injury actions). 25 For the purposes of this motion, the Court will presume that plaintiff has been continuously 26 incarcerated since August 7, 2012,8 and is entitled to tolling pursuant to Cal. Civ. Proc. Code § 27 1 352.1(a),9 which would toll the limitations period from August 7, 2012 to August 7, 2014. The 2 Court will also presume that criminal charges were pending against plaintiff from the date of his 3 arrest, August 7, 2012, until his conviction on September 14, 2012, and that he is entitled to tolling 4 pursuant to Cal. Gov’t Code § 945.3, which would toll the limitations period from August 7, 2012 5 to September 14, 2012. Accordingly, pursuant to Cal. Gov’t Code § 945.3 and Cal. Civ. Proc. 6 Code § 352.1(a), the limitations period would be tolled until August 7, 2014, started to run on 7 August 7, 2014, and expired on August 7, 2016. Plaintiff’s unlawful search and seizure claim, 8 filed on September 12, 2018, is untimely unless entitled to equitable tolling. 9 The Court finds that plaintiff is not entitled to equitable tolling, either for the period during 10 which his government tort claim was pending or based on the other arguments that he sets forth. 11 Plaintiff filed his government tort claim on October 16, 2013. It is unclear how or when 12 this claim was resolved, but the instant action was filed nearly five years after the claim was filed. 13 The delay of approximately five years in filing this claim prejudiced the defendants in gathering 14 evidence because of the time that has lapsed since the relevant events. This timing does not reflect 15 good faith or reasonable conduct in pursuing the claim, which is the second element of the three- 16 part California test for equitable tolling. See Lucchesi, 353 F.3d at 694-95 (state tort claim 17 justifies equitable tolling if it gives defendant timely notice of claim; defendant is not prejudiced 18 in gathering evidence to defend against the second claim; and plaintiff acted reasonably and in 19 good faith). 20

21 9 Defendants argue that plaintiff is not entitled to statutory tolling under Cal. Civ. Proc. Code § 352.1(a), because he was in pretrial custody at the time the cause of action accrued, and Cal. Civ. 22 Proc. Code § 352.1(a) applies only to plaintiffs “imprisoned on a criminal charge” at the time the cause of action accrued. Defendants cite Austin v. Medicis, 21 Cal.App.5th 577, 597 (Cal. Ct. 23 App. 2018) in support of this argument. Because two-year tolling of the limitations period pursuant to Cal. Civ. Proc. Code § 352.1(a) would not render plaintiff’s claims timely, the Court 24 declines to determine whether Austin should apply retroactively to plaintiff’s claims, and whether Austin requires reconsideration of the Ninth Circuit’s prior holdings in Elliott v. City of Union 25 City, 25 F.3d 800, 803 (9th Cir. 1994) and Jones v. Blanas, 393 F.3d 918, 928-29 (9th Cir. 2004), which held that continuous custody is the relevant disability and does not distinguish between pre- 26 arraignment, pre-conviction and post-conviction incarceration. See, e.g., Baros v. Ramirez, Case No. 5:17-CV-00948 R (SHK), 2019 WL 3849171, at *6-*12 (C.D. Cal. June 5, 2019), report and 27 recommendation adopted, Case No. 5:17-CV-00948 R (SHK), 2019 WL 3841797 (C.D. Cal. Aug. 1 Plaintiff argues that he is entitled to equitable tolling because he was unaware that he could 2 seek relief via a Section 1983 action until October 16, 2013; because he believed that he could not 3 seek relief until he was released from prison; because he was unable to file this suit until his 4 motion to suppress was granted on September 30, 2014; and because he has shown diligence in 5 pursuing these claims.10 However, the standard for equitable tolling is not plaintiff’s awareness of 6 his ability to file the claims or his diligence in pursuing these claims. Equitable tolling applies 7 where a reasonable plaintiff would not have known of the existence of a possible claim within the 8 limitations period. Lukovsky v. City & Cty. of San Francisco, 535 F.3d 1044, 1051 (9th Cir. 9 2008). This is not the case here. By October 16, 2013, Plaintiff was aware that defendants had 10 used excessive force on him and conducted an unlawful search and seizure, as evidenced by the 11 tort claim he filed on that date. Even if the limitations period were equitably tolled until October 12 16, 2013, it would have expired on October 16, 2015, nearly three years prior to the filing of this 13 case, still leaving plaintiff’s unlawful search and seizure action untimely.11 14 10 Plaintiff also argues that he is entitled to equitable tolling because he has no other remedy. The 15 statute of limitations is not discretionary, and the Court may not consider an untimely claim simply because plaintiff has been unable to obtain relief via other avenues. 16 11 Plaintiff’s reasons for waiting to file his action are unsupported by the record or have no basis in law. Though plaintiff claims to have demonstrated diligence in pursuing his claims, he did not file 17 this action until over four years after his conviction was vacated in 2014. Though plaintiff claims that his incarceration prevented him from knowing of, and filing, his claim prior to 2018, plaintiff 18 was incarcerated when he filed the present case. Finally, the Court is unaware of any requirements regarding supporting documentation to file a Section 1983 action, or of any provision in the PLRA 19 that requires a plaintiff to be released from prison prior to filing suit. To the extent that the delay is attributable to plaintiff’s ignorance of the law, this does not entitle him to equitable tolling. See, 20 e .g., Doss v. Rim, No. CV 10-7134-VBF RNB, 2012 WL 3782524, at *7 (C.D. Cal. June 20, 2012), report and recommendation adopted, No. CV 10-7134-VBF RNB, 2012 WL 3782453 21 (C.D. Cal. Aug. 31, 2012), aff’d sub nom. Doss v. City of Long Beach, 559 F. App’x 636 (9th Cir. 2014) (ignorance of the law does not entitle pro se plaintiff to equitable tolling) (collecting cases). 22 In an abundance of caution, the Court notes that the record indicates that there is an additional potential ground for seeking equitable tolling. At the time that plaintiff filed his tort 23 claim, October 16, 2013, plaintiff was unaware of the identities of the SJPD officers who had used excessive force. RJN, Ex. D. However, the availability of equitable tolling turns on whether the 24 plaintiff was aware of the existence of a possible claim, not on whether the plaintiff has identified the defendants. Plaintiffs have the option of bringing suit against Doe defendants. See, e.g., Fox 25 v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 807 (Cal. 2005) (delayed discovery exception to claim accrual rule postpones accrual of a cause of action until plaintiff discovers, or has reason to 26 discover, the cause of action; delayed discovery rule does not apply where plaintiff is uncertain about defendant’s identity because identity of defendant is not element of cause of action). 27 Moreover, even if plaintiff were entitled to equitable tolling based on his inability to ascertain the 1 In summary, liberally construing the complaint and making all reasonable inferences in 2 plaintiff’s favor, his unlawful search and seizure claim is untimely. Statutory tolling pursuant to 3 Cal. Gov’t Code § 945.3 entitles the plaintiff to, at most, tolling of the limitations period from 4 August 7, 2012 to September 14, 2012. Statutory tolling pursuant to Cal. Civ. Proc. Code § 5 352.1(a) entitles the plaintiff to, at most, tolling of the limitations period from August 7, 2012 to 6 August 7, 2014. Equitable tolling for delayed discovery entitles the plaintiff to, at most, tolling of 7 the limitations period through September 2, 2015. The statute of limitations expired, at the latest, 8 on September 2, 2017, a year before the instant action was filed. Plaintiff’s unlawful search and 9 seizure claim is therefore barred by the statute of limitations. 10 2. Excessive Force Claim 11 The Court finds that plaintiff’s excessive force claim accrued on October 8, 2014, when the 12 state court dismissed the underlying action. Rodriguez, 535 F. App’x at 644–45. Success on 13 plaintiff’s excessive force claim implies the invalidity of his Cal. Penal Code § 148(a)(1) 14 conviction. Under Heck, plaintiff’s excessive force claim therefore could not be brought until 15 October 8, 2014, when the state court dismissed the underlying action. Plaintiff is therefore 16 entitled to delayed accrual for his excessive force claim until October 8, 2014. The limitations 17 period began to run on October 8, 2014 and expired on October 8, 2016, almost two years before 18 he filed the instant action. Plaintiff’s excessive force claim is untimely unless statutory tolling or 19 equitable tolling rendered the claim timely. 20 For the purposes of this motion, the Court presumes that plaintiff is entitled to statutory 21 tolling pursuant to Cal. Gov’t Code § 945.3 and Cal. Civ. Proc. Code § 352.1(a), and equitable 22 tolling for delayed discovery of the defendants’ identities. As discussed supra, statutory tolling 23 pursuant to Cal. Gov’t Code § 945.3 entitles the plaintiff to, at most, tolling of the limitations 24 period from August 7, 2012 to September 14, 2012, and statutory tolling pursuant to Cal. Civ. 25 Proc. Code § 352.1(a) entitles the plaintiff to, at most, tolling of the limitations period from 26 Dkt. No. 1 at 5-25. Even if plaintiff were entitled to the one-year equitable tolling of the 27 limitations period for delayed discovery of the defendants’ identities, this would only toll the 1 August 7, 2012 to August 7, 2014. Equitable tolling for delayed discovery would toll the 2 || limitations period until September 2, 2015. The limitations period for the excessive force claim 3 would be tolled, at the latest, until September 2, 2015, and the limitations period would have 4 || expired on September 2, 2017, a year before the instant action was filed. In summary, liberally 5 construing the complaint and making all reasonable inferences in favor of plaintiff, plaintiff's 6 || excessive force claim remains untimely. 7 CONCLUSION 8 For the foregoing reasons, the Court GRANTS defendants’ motion to dismiss the action as 9 || time-barred. The Clerk shall enter judgment in favor of defendants and against plaintiff. 10 This order terminates Dkt. No. 18. 11 IT IS SO ORDERED. || Dated: 1/15/2020

Asipreed 5 Mbt) HAYWOOD S. GILLIAM, JR. 14 United States District Judge 15

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