1 WO SH 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Douglas A. Hirano, No. CV 21-01352-PHX-MTL (DMF) 10 Plaintiff, 11 v. ORDER 12 Unknown Davidson, et al., 13 Defendants.
14 15 Plaintiff Douglas A. Hirano, who was previously confined at the Federal 16 Correctional Institution (FCI)-Phoenix, brought this pro se civil rights action pursuant to 17 the Federal Tort Claims Acts (FTCA) and Bivens v. Six Unknown Named Agents of Federal 18 Bureau of Narcotics, 403 U.S. 388 (1971). Defendants have filed Motions to Dismiss for 19 failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docs. 15, 20 16.) Plaintiff was informed of his rights and obligations to respond (Docs. 17, 18), and he 21 did not file a response. The Court will grant the Motions and terminate the action. 22 I. Background 23 In his Complaint, Plaintiff alleges that in November 2017, he won a settlement in a 24 previous lawsuit that he initiated against a Bureau of Prisons (BOP) employee. (Doc. 1 at 25 5.) In the aftermath of that settlement, the BOP employee was fired and subsequently 26 committed suicide. (Id.) Plaintiff alleges that in March 2018, Defendant Lt. Davidson 27 “subjected Plaintiff to restrictive confinement in the Special Housing Unit [SHU]” for 28 approximately three-and-a-half months in retaliation for Plaintiff’s previous lawsuit. (Id. 1 at 5, 9.) Plaintiff also alleges that in June 2018, his security classification dropped to “low 2 custody,” which should have made Plaintiff eligible for transfer to a low security facility, 3 but Defendant Davidson requested for Plaintiff to be transferred to the Designation and 4 Sentence Computation Center, which resulted in Plaintiff “remain[ing] at a medium 5 custody level and facility for an additional year.” (Id. at 7.) Plaintiff brings a Fifth 6 Amendment due process (Count One) and Eighth Amendment deliberate indifference 7 (Count Two) claims against Defendant Davidson, and an FTCA claim against the United 8 States (Count Three). (Id. at 9–11.) 9 Defendant Davidson moves to dismiss Counts One and Two and argues that 10 Plaintiff’s claims are barred by the statute of limitations, are not cognizable under Bivens, 11 fail to state a claim, and are barred by qualified immunity. (Doc. 15.) The United States 12 of America moves to dismiss Count Three for lack of jurisdiction, failure to state a claim, 13 and for insufficiency of service of process. (Doc. 16.) 14 II. Motion to Dismiss Standard 15 Dismissal of a complaint, or any claim within it, for failure to state a claim under 16 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 17 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 18 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 19 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 20 whether a complaint states a claim under this standard, the allegations in the complaint are 21 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 22 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A 23 pleading must contain “a short and plain statement of the claim showing that the pleader is 24 entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the 25 statement need only give the defendant fair notice of what . . . the claim is and the grounds 26 upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation 27 omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible 28 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. 1 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 2 pleads factual content that allows the court to draw the reasonable inference that the 3 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Where the plaintiff 4 is a pro se prisoner, the court must “construe the pleadings liberally and [] afford the 5 petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 6 As a general rule, when deciding a Rule 12(b)(6) motion, the court looks only to the 7 face of the complaint and documents attached thereto. Van Buskirk v. Cable News 8 Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner 9 & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). If a court considers evidence outside 10 the pleading, it must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary 11 judgment. United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003). A court may, 12 however, consider documents incorporated by reference in the complaint or matters of 13 judicial notice without converting the motion to dismiss into a motion for summary 14 judgment. Id. 15 III. Defendant Davidson’s Motion to Dismiss 16 A. Statute of Limitations 17 “Although federal law determines when a Bivens claim accrues, the law of the forum 18 state determines the statute of limitations for such a claim.” Papa v. United States, 281 19 F.3d 1004, 1009 (9th Cir. 2002), superseded by statute on other grounds. Therefore, 20 federal courts apply the statute of limitations governing personal injury claims in the forum 21 state. Wilson v. Garcia, 471 U.S. 261, 280 (1985); Schwarz v. Meinberg, 761 Fed. App’x 22 732, 735 (9th Cir. Feb. 13, 2019) (“The statute of limitations for a Bivens claim is 23 equivalent to a personal injury claim in the forum state.”). In Arizona, the limitations 24 period for personal injury claims is two years. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th 25 Cir. 1999); Ariz. Rev. Stat. § 12-542 (providing that actions for personal injury must be 26 commenced within two years after the cause of action accrues). 27 Under federal law, a claim accrues “when the plaintiff knows or has reason to know 28 of the injury which is the basis of the action.” TwoRivers, 174 F.3d at 991; Kimes v. Stone, 1 84 F.3d 1121, 1128 (9th Cir. 1996.).
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1 WO SH 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Douglas A. Hirano, No. CV 21-01352-PHX-MTL (DMF) 10 Plaintiff, 11 v. ORDER 12 Unknown Davidson, et al., 13 Defendants.
14 15 Plaintiff Douglas A. Hirano, who was previously confined at the Federal 16 Correctional Institution (FCI)-Phoenix, brought this pro se civil rights action pursuant to 17 the Federal Tort Claims Acts (FTCA) and Bivens v. Six Unknown Named Agents of Federal 18 Bureau of Narcotics, 403 U.S. 388 (1971). Defendants have filed Motions to Dismiss for 19 failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docs. 15, 20 16.) Plaintiff was informed of his rights and obligations to respond (Docs. 17, 18), and he 21 did not file a response. The Court will grant the Motions and terminate the action. 22 I. Background 23 In his Complaint, Plaintiff alleges that in November 2017, he won a settlement in a 24 previous lawsuit that he initiated against a Bureau of Prisons (BOP) employee. (Doc. 1 at 25 5.) In the aftermath of that settlement, the BOP employee was fired and subsequently 26 committed suicide. (Id.) Plaintiff alleges that in March 2018, Defendant Lt. Davidson 27 “subjected Plaintiff to restrictive confinement in the Special Housing Unit [SHU]” for 28 approximately three-and-a-half months in retaliation for Plaintiff’s previous lawsuit. (Id. 1 at 5, 9.) Plaintiff also alleges that in June 2018, his security classification dropped to “low 2 custody,” which should have made Plaintiff eligible for transfer to a low security facility, 3 but Defendant Davidson requested for Plaintiff to be transferred to the Designation and 4 Sentence Computation Center, which resulted in Plaintiff “remain[ing] at a medium 5 custody level and facility for an additional year.” (Id. at 7.) Plaintiff brings a Fifth 6 Amendment due process (Count One) and Eighth Amendment deliberate indifference 7 (Count Two) claims against Defendant Davidson, and an FTCA claim against the United 8 States (Count Three). (Id. at 9–11.) 9 Defendant Davidson moves to dismiss Counts One and Two and argues that 10 Plaintiff’s claims are barred by the statute of limitations, are not cognizable under Bivens, 11 fail to state a claim, and are barred by qualified immunity. (Doc. 15.) The United States 12 of America moves to dismiss Count Three for lack of jurisdiction, failure to state a claim, 13 and for insufficiency of service of process. (Doc. 16.) 14 II. Motion to Dismiss Standard 15 Dismissal of a complaint, or any claim within it, for failure to state a claim under 16 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 17 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 18 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 19 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 20 whether a complaint states a claim under this standard, the allegations in the complaint are 21 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 22 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A 23 pleading must contain “a short and plain statement of the claim showing that the pleader is 24 entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the 25 statement need only give the defendant fair notice of what . . . the claim is and the grounds 26 upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation 27 omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible 28 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. 1 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 2 pleads factual content that allows the court to draw the reasonable inference that the 3 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Where the plaintiff 4 is a pro se prisoner, the court must “construe the pleadings liberally and [] afford the 5 petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 6 As a general rule, when deciding a Rule 12(b)(6) motion, the court looks only to the 7 face of the complaint and documents attached thereto. Van Buskirk v. Cable News 8 Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner 9 & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). If a court considers evidence outside 10 the pleading, it must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary 11 judgment. United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003). A court may, 12 however, consider documents incorporated by reference in the complaint or matters of 13 judicial notice without converting the motion to dismiss into a motion for summary 14 judgment. Id. 15 III. Defendant Davidson’s Motion to Dismiss 16 A. Statute of Limitations 17 “Although federal law determines when a Bivens claim accrues, the law of the forum 18 state determines the statute of limitations for such a claim.” Papa v. United States, 281 19 F.3d 1004, 1009 (9th Cir. 2002), superseded by statute on other grounds. Therefore, 20 federal courts apply the statute of limitations governing personal injury claims in the forum 21 state. Wilson v. Garcia, 471 U.S. 261, 280 (1985); Schwarz v. Meinberg, 761 Fed. App’x 22 732, 735 (9th Cir. Feb. 13, 2019) (“The statute of limitations for a Bivens claim is 23 equivalent to a personal injury claim in the forum state.”). In Arizona, the limitations 24 period for personal injury claims is two years. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th 25 Cir. 1999); Ariz. Rev. Stat. § 12-542 (providing that actions for personal injury must be 26 commenced within two years after the cause of action accrues). 27 Under federal law, a claim accrues “when the plaintiff knows or has reason to know 28 of the injury which is the basis of the action.” TwoRivers, 174 F.3d at 991; Kimes v. Stone, 1 84 F.3d 1121, 1128 (9th Cir. 1996.). However, the Court must apply any state rule for 2 tolling to actions brought under Bivens. Papa, 281 F.3d at 1009. 3 For the defense of the running of the statute of limitations to be decided on a motion 4 to dismiss, the untimeliness must clearly appear on the face of the complaint. See 5 Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206-1207 (9th Cir. 1995) (“A motion to 6 dismiss based on the running of the statute of limitations period may be granted only ‘if 7 the assertions of the complaint, read with the required liberality, would not permit the 8 plaintiff to prove that the statute was tolled.’”) (quoting Jablon v. Dean Witter & Co., 614 9 F.2d 677, 682 (9th Cir. 1980)). 10 Defendant Davidson argues that because Plaintiff’s due process and deliberate 11 indifference claims accrued, at the latest, on May 31, 2018, at which point Plaintiff had 12 knowledge of his injuries upon which his claims against Defendant Davidson are based, 13 Plaintiff had until May 31, 2020 to initiate this action, but because Plaintiff did not file his 14 Complaint in this action until August 4, 2021, his claims are barred by the statute of 15 limitations under Arizona law. (Doc. 15 at 7.) 16 In this instance, it is clear on the face of the Complaint that Plaintiff’s claim accrued, 17 at the latest, by June 30, 2018, at which point he was aware of his allegedly unconstitutional 18 three-month confinement in the SHU and his improper transfer to a medium custody 19 facility. Thus, Plaintiff was required to file his claims against Defendant Davidson by June 20 30, 2020. As previously stated, Plaintiff filed this lawsuit on August 4, 2021. Plaintiff did 21 not respond to Defendant Davidson’s Motion to Dismiss despite being given additional 22 time to respond. (See Doc. 22 (granting Plaintiff’s Motion for Extension of Time and 23 giving Plaintiff until July 7, 2022 to respond to the Motion to Dismiss).) Because it is clear 24 on the face of the Complaint that Plaintiff filed his claims against Defendant Davidson over 25 one year after the applicable two-year statute of limitations elapsed for bringing those 26 claims, and Plaintiff did not respond or otherwise show that any state rules for tolling would 27 have rendered his claims timely, the Court will grant Defendant Davidson’s Motion and 28 dismiss Defendant Davidson from this action and dismiss Plaintiff’s due process and 1 deliberate indifference claims as time-barred. As such, the Court will not address 2 Defendant Davidson’s remaining arguments. 3 IV. United States’ Motion to Dismiss 4 A. Timeliness 5 The FTCA requires the claimant to file an administrative claim with the appropriate 6 federal agency within two years of its accrual, and suit must be commenced within six 7 months of the agency’s denial of the claim or after six months has elapsed without a final 8 disposition of the claim. 28 U.S.C. § 2401(b); Jerves v. United States, 966 F.2d 517, 519 9 (9th Cir. 1992). This administrative exhaustion requirement is jurisdictional and cannot be 10 waived. Id. (quoting Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985)). Moreover, 11 exhaustion must be affirmatively alleged in the complaint. Gillespie v. Civiletti, 629 F.2d 12 637, 640 (9th Cir. 1980). 13 Here, Plaintiff alleges that he “filed a claim for Damage, Injury or Death pursuant 14 to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. [§] 1346 and 2671, Administrative 15 Claim No. TRT-WXR-2019-00270” regarding his FTCA claim in Count Three. (Doc. 1 16 at 7.) Plaintiff submitted this administrative claim to the BOP Western Regional Office on 17 or about October 5, 2018, and it was received by the BOP on October 15, 2018. (See Doc. 18 16-1 at 4.)* On April 11, 2019, BOP Western Regional Counsel Dennis M. Wong 19 responded to Plaintiff’s administrative claim and advised that: 20 You seek $100,000.00 in compensation for alleged personal injury as a result of events occurring at the Federal Correctional 21 Institution (FCI), Phoenix, Arizona on March 4, 2018. 22 Investigation fails to disclose any evidence of negligence or 23 other conduct for which the United States is liable. You have 24
25 * Although courts will not normally look beyond the pleadings in resolving a Rule 12(b)(6) motion, Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001), a “court 26 may consider material that the plaintiff properly submitted as part of the complaint or, even if not physically attached to the complaint, material that is not contended to be inauthentic 27 and that is necessarily relied upon by the plaintiff’s complaint.” Id. Here, Plaintiff specifically refers to his administrative claim in Count Three of the Complaint (Doc. 1 at 28 7); thus, the Court will consider the administrative claim and the corresponding response without converting Defendant’s motion into a motion for summary judgment. 1 failed to establish that you sustained a loss or personal injury as a result of staff negligence in this matter. Accordingly, your claim is denied. If you are not satisfied with 3 this determination, you are afforded six months from the date 4 of the mailing of this letter via certified mail, within which to bring suit in the appropriate United States District Court. (Id. at 11.) The certified mailing receipt for the letter indicates it was delivered on April 7 18, 2019. Cd. at 14.) Plaintiff filed this lawsuit on August 4, 2021, more than two years g after his administrative claim was denied, and well beyond the six-month timeframe for 9 filing a lawsuit. Moreover, Plaintiff has not responded to the Motion to Dismiss or 10 otherwise shown that he has satisfied the FTCA’s exhaustion requirement or demonstrated that equitable tolling applies in this instance. Accordingly, Plaintiff's FTCA claim must 0 be dismissed, and the Court will not address Defendant United States’ remaining 3 arguments. 4 IT IS ORDERED: 15 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 16 Motions to Dismiss (Docs. 15, 16). 7 (2) Defendant Davidson’s Motion to Dismiss (Doc. 15) is granted, and 18 Defendant Davidson and Plaintiff's due process and deliberate indifference claims in 19 Counts One and Two are dismissed as time barred. 20 (3) Defendant United States of America’s Motion to Dismiss (Doc. 16) is granted, and Plaintiff's FTCA claim in Count Three is dismissed as time barred. (4) There being no claims or Defendants remaining, this action is dismissed, and 53 the Clerk of Court must terminate the action and enter judgment accordingly. Dated this 22nd day of December, 2022. 25 . 26 Mi chal T. Hbhurdle 27 Michael T. Liburdi 3g United States District Judge