1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEONARD EUGENE WARD, Case No.: 19-CV-1267-LAB(WVG)
12 Plaintiff, REPORT AND 13 v. RECOMMENDATION ON DEFENDANTS’ MOTION TO 14 M. H. VALADEZ et al., DISMISS 15 Defendants. [Doc. No. 47.] 16 17 18 On September 6, 2018, Plaintiff Leonard Eugene Ward filed a Complaint against the 19 named Defendants under 42 U.S.C. § 1983 for various civil and constitutional rights 20 violations during his incarceration in California state prison. Plaintiff also alleges various 21 state tort claims. Defendants have moved to dismiss this lawsuit based on the running of 22 the statute of limitations. For the reasons discussed below, this Court RECOMMENDS 23 that Defendants’ motion to dismiss be GRANTED and the Complaint be DISMISSED 24 without leave to amend. 25 I. BACKGROUND 26 Ward was sentenced on July 24, 2009, to a total term of fifty years-to-life and was 27 thereafter incarcerated at Centinela State Prison. In October 2013, the California Superior 28 Court vacated his sentence and resentenced him to a total term of eleven years. Plaintiff 1 was released from prison on July 21, 2015, but now alleges that he should have been 2 released as early as May 2014. Plaintiff alleges Defendants incorrectly calculated the time 3 he should have served by not giving him credit for good time or work time, not giving him 4 credit under California Penal Code section 667, and failing to properly calculate the time 5 he actually served. Plaintiff alleges that Defendants Griffin, Alfaro, Galindo, Santana, and 6 Bowen were case records administrators or correctional counselors who incorrectly 7 calculated his sentence; Defendants Palacio, Valadez, Johnson, Favila, Allen, and Voong 8 reviewed Plaintiff’s prison appeals regarding his sentence; Defendants Martinez and 9 Taylor-Garcia worked on both his sentence calculation and appeals; and Defendants 10 Santana and Denault transferred him to CSP-Centinela despite a favorable classification 11 score. While incarcerated in January of 2015, Plaintiff filed Inmate/Parolee Appeals 12 (CDCR Form 602) seeking relief from his continued detention. Those petitions were 13 denied at the “third level” of review on July 31, 2015. 14 While still in prison, Plaintiff filed an initial government claim with the California 15 Victim Compensation and Government Claims Board (VCGCB) on April 7, 2015. In his 16 claim, Plaintiff alleged that he had been over-detained. Plaintiff identified the dates of the 17 incident as “10-11-13 until 4-7-15 and continues.” On April 21, 2015, the VCGCB advised 18 Plaintiff that his claim was not accepted because he had not paid the filing fee or otherwise 19 requested a waiver of the filing fee. On May 7, 2015, Plaintiff resubmitted his claim with 20 a fee waiver. On May 15, 2015, the VCGCB denied any timely claims and advised Plaintiff 21 to file a late claim application as to any late claims. On May 25, 2015, Plaintiff resubmitted 22 his claim. On June 12, 2015, the VCGCB acknowledge receipt of Plaintiff’s claim, and 23 agreed to treat the claim as a late claim. On July 21, 2015, the VCGCB advised Plaintiff 24 that staff was recommending that his claim be denied, and he was released the same day. 25 The VCGCB formally denied the late claim on August 20, 2015 and rejected the claim 26 itself. (Letter dated Aug. 28, 2015, Lodgment 47-1 at 21.) The VCGCB notified Plaintiff 27 that he would need to petition the appropriate court for an order relieving him from the 28 denial of his late claim. 1 Plaintiff filed a second government claim with a late application on February 19, 2 2016. On April 21, 2016, the VCGCB notified Plaintiff that the staff was recommending 3 that the late claim petition be denied. The VCGCB formally denied the late claim on May 4 19, 2016 and rejected the claim. (Letter dated May 27, 2016, Lodgment 47-1 at 36.) The 5 VCGCB again notified Plaintiff that he would need to petition the appropriate court for an 6 order relieving him from the denial of his late claim. 7 Plaintiff filed suit in the United States District Court for the Central District of 8 California against various California officials in July 2016. Plaintiff later moved the court 9 to dismiss the case without prejudice in June 2017 because the Complaint did not name the 10 proper defendants. In September 2018, Plaintiff commenced the instant action. The 11 Complaint alleges various injuries under 42 U.S.C. § 1983 starting on November 1, 2013 12 at Centinela state prison. These federal claims include a conspiracy to violate civil rights 13 under 42 U.S.C. § 1985, violation of the Fourth and Eighth Amendments by over- 14 incarceration through failing to accurately calculate his time and credits, retaliation against 15 his First Amendment rights for filing grievances, violation of the Fourteenth Amendment’s 16 Equal Protection Clause, and the Fifth Amendment’s guaranty of due process and Sixth 17 Amendment’s Right to Counsel at “critical court proceedings.” Under 28 U.S.C. § 1367, 18 Plaintiff also alleges supplemental state tort claims of false imprisonment, negligence, and 19 intentional infliction of emotional distress. 20 In their motion to dismiss, Defendants argue that (1) the face of the Complaint 21 demonstrates that Plaintiff’s federal claims are barred by the statute of limitations and were 22 not tolled; (2) Plaintiff failed to timely comply with the Government Claims Act and his 23 claims under state law are also barred; and in the alternative, that (3) Plaintiff failed to state 24 25 26 27 28 1 facts sufficient to support a claim against Defendant Denault; (4) Plaintiff cannot state a 2 claim under the First, Fourth, Fifth, or Sixth Amendments.1 3 II. LEGAL STANDARD 4 A. Motions to Dismiss 5 On a motion to dismiss based on the statute of limitations, the Court must assess 6 whether “the running of the statute is apparent on the face of the complaint.” Huynh v. 7 Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006) (quoting Jablon v. Dean Witter 8 & Co., 614 F.2d 677, 682 (9th Cir. 1980) (“When a motion to dismiss is based on the 9 running of the statute of limitations, it can be granted only if the assertions of the complaint, 10 read with the required liberality, would not permit the plaintiff to prove that the statute was 11 tolled.”)). Because the statute of limitations is an affirmative defense, the “defendant has 12 the burden of proving the action is time-barred.” Grisham v. Philip Morris, Inc., 670 F. 13 Supp. 2d 1014, 1020 (C.D. Cal. 2009) (citation omitted). 14 B. Statute of Limitations in Section 1983 Actions; Tolling; Accrual 15 Where the running of the statute of limitations is apparent on the face of the 16 complaint, dismissal for failure to state a claim is proper. Cervantes v. City of San Diego, 17 5 F.3d 1273, 1275 (9th Cir. 1993). Because § 1983 contains no specific statute of 18 limitations, federal courts apply the forum state’s statute of limitations for personal injury 19 actions. Wallace v. Kato, 549 U.S. 384, 387 (2007); Jones v. Blanas, 393 F.3d 918, 927 20 (9th Cir. 2004); Maldonado v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEONARD EUGENE WARD, Case No.: 19-CV-1267-LAB(WVG)
12 Plaintiff, REPORT AND 13 v. RECOMMENDATION ON DEFENDANTS’ MOTION TO 14 M. H. VALADEZ et al., DISMISS 15 Defendants. [Doc. No. 47.] 16 17 18 On September 6, 2018, Plaintiff Leonard Eugene Ward filed a Complaint against the 19 named Defendants under 42 U.S.C. § 1983 for various civil and constitutional rights 20 violations during his incarceration in California state prison. Plaintiff also alleges various 21 state tort claims. Defendants have moved to dismiss this lawsuit based on the running of 22 the statute of limitations. For the reasons discussed below, this Court RECOMMENDS 23 that Defendants’ motion to dismiss be GRANTED and the Complaint be DISMISSED 24 without leave to amend. 25 I. BACKGROUND 26 Ward was sentenced on July 24, 2009, to a total term of fifty years-to-life and was 27 thereafter incarcerated at Centinela State Prison. In October 2013, the California Superior 28 Court vacated his sentence and resentenced him to a total term of eleven years. Plaintiff 1 was released from prison on July 21, 2015, but now alleges that he should have been 2 released as early as May 2014. Plaintiff alleges Defendants incorrectly calculated the time 3 he should have served by not giving him credit for good time or work time, not giving him 4 credit under California Penal Code section 667, and failing to properly calculate the time 5 he actually served. Plaintiff alleges that Defendants Griffin, Alfaro, Galindo, Santana, and 6 Bowen were case records administrators or correctional counselors who incorrectly 7 calculated his sentence; Defendants Palacio, Valadez, Johnson, Favila, Allen, and Voong 8 reviewed Plaintiff’s prison appeals regarding his sentence; Defendants Martinez and 9 Taylor-Garcia worked on both his sentence calculation and appeals; and Defendants 10 Santana and Denault transferred him to CSP-Centinela despite a favorable classification 11 score. While incarcerated in January of 2015, Plaintiff filed Inmate/Parolee Appeals 12 (CDCR Form 602) seeking relief from his continued detention. Those petitions were 13 denied at the “third level” of review on July 31, 2015. 14 While still in prison, Plaintiff filed an initial government claim with the California 15 Victim Compensation and Government Claims Board (VCGCB) on April 7, 2015. In his 16 claim, Plaintiff alleged that he had been over-detained. Plaintiff identified the dates of the 17 incident as “10-11-13 until 4-7-15 and continues.” On April 21, 2015, the VCGCB advised 18 Plaintiff that his claim was not accepted because he had not paid the filing fee or otherwise 19 requested a waiver of the filing fee. On May 7, 2015, Plaintiff resubmitted his claim with 20 a fee waiver. On May 15, 2015, the VCGCB denied any timely claims and advised Plaintiff 21 to file a late claim application as to any late claims. On May 25, 2015, Plaintiff resubmitted 22 his claim. On June 12, 2015, the VCGCB acknowledge receipt of Plaintiff’s claim, and 23 agreed to treat the claim as a late claim. On July 21, 2015, the VCGCB advised Plaintiff 24 that staff was recommending that his claim be denied, and he was released the same day. 25 The VCGCB formally denied the late claim on August 20, 2015 and rejected the claim 26 itself. (Letter dated Aug. 28, 2015, Lodgment 47-1 at 21.) The VCGCB notified Plaintiff 27 that he would need to petition the appropriate court for an order relieving him from the 28 denial of his late claim. 1 Plaintiff filed a second government claim with a late application on February 19, 2 2016. On April 21, 2016, the VCGCB notified Plaintiff that the staff was recommending 3 that the late claim petition be denied. The VCGCB formally denied the late claim on May 4 19, 2016 and rejected the claim. (Letter dated May 27, 2016, Lodgment 47-1 at 36.) The 5 VCGCB again notified Plaintiff that he would need to petition the appropriate court for an 6 order relieving him from the denial of his late claim. 7 Plaintiff filed suit in the United States District Court for the Central District of 8 California against various California officials in July 2016. Plaintiff later moved the court 9 to dismiss the case without prejudice in June 2017 because the Complaint did not name the 10 proper defendants. In September 2018, Plaintiff commenced the instant action. The 11 Complaint alleges various injuries under 42 U.S.C. § 1983 starting on November 1, 2013 12 at Centinela state prison. These federal claims include a conspiracy to violate civil rights 13 under 42 U.S.C. § 1985, violation of the Fourth and Eighth Amendments by over- 14 incarceration through failing to accurately calculate his time and credits, retaliation against 15 his First Amendment rights for filing grievances, violation of the Fourteenth Amendment’s 16 Equal Protection Clause, and the Fifth Amendment’s guaranty of due process and Sixth 17 Amendment’s Right to Counsel at “critical court proceedings.” Under 28 U.S.C. § 1367, 18 Plaintiff also alleges supplemental state tort claims of false imprisonment, negligence, and 19 intentional infliction of emotional distress. 20 In their motion to dismiss, Defendants argue that (1) the face of the Complaint 21 demonstrates that Plaintiff’s federal claims are barred by the statute of limitations and were 22 not tolled; (2) Plaintiff failed to timely comply with the Government Claims Act and his 23 claims under state law are also barred; and in the alternative, that (3) Plaintiff failed to state 24 25 26 27 28 1 facts sufficient to support a claim against Defendant Denault; (4) Plaintiff cannot state a 2 claim under the First, Fourth, Fifth, or Sixth Amendments.1 3 II. LEGAL STANDARD 4 A. Motions to Dismiss 5 On a motion to dismiss based on the statute of limitations, the Court must assess 6 whether “the running of the statute is apparent on the face of the complaint.” Huynh v. 7 Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006) (quoting Jablon v. Dean Witter 8 & Co., 614 F.2d 677, 682 (9th Cir. 1980) (“When a motion to dismiss is based on the 9 running of the statute of limitations, it can be granted only if the assertions of the complaint, 10 read with the required liberality, would not permit the plaintiff to prove that the statute was 11 tolled.”)). Because the statute of limitations is an affirmative defense, the “defendant has 12 the burden of proving the action is time-barred.” Grisham v. Philip Morris, Inc., 670 F. 13 Supp. 2d 1014, 1020 (C.D. Cal. 2009) (citation omitted). 14 B. Statute of Limitations in Section 1983 Actions; Tolling; Accrual 15 Where the running of the statute of limitations is apparent on the face of the 16 complaint, dismissal for failure to state a claim is proper. Cervantes v. City of San Diego, 17 5 F.3d 1273, 1275 (9th Cir. 1993). Because § 1983 contains no specific statute of 18 limitations, federal courts apply the forum state’s statute of limitations for personal injury 19 actions. Wallace v. Kato, 549 U.S. 384, 387 (2007); Jones v. Blanas, 393 F.3d 918, 927 20 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). The statute of 21 limitations for personal injury claims in California is two years. Cal. Civ. Proc. Code 22 § 335.1. The rules of tolling are also taken from state law. Hardin v. Straub, 490 U.S. 536, 23 543 (1989); Wallace, 549 U.S. at 394; TwoRivers v. Lewis, 174 F.3d 987, 992 (9th Cir. 24 1999). 25 26 27 1 Because this Court concludes that Plaintiff’s claims are wholly barred by the statute of limitations—and in the interests of efficiency and judicial economy—this Report and 28 1 Unlike the length of the limitations period and tolling rules, however, “the accrual 2 date of a § 1983 cause of action is a question of federal law that is not resolved by reference 3 to state law.” Wallace, 549 U.S. 384, 388 (2007); Hardin, 490 U.S. at 543-44 (holding that 4 federal law governs when a § 1983 cause of action accrues). “Under the traditional rule of 5 accrual . . . the tort cause of action accrues, and the statute of limitations begins to run, 6 when the wrongful act or omission results in damages.” Wallace, 549 U.S. at 391; see also 7 Maldonado, 370 F.3d at 955 (“Under federal law, a claim accrues when the plaintiff knows 8 or has reason to know of the injury which is the basis of the action.”). “[T]he standard rule 9 [is] that [accrual occurs] when the plaintiff has ‘a complete and present cause of action’” 10 that is, when “the plaintiff can file suit and obtain relief.” Wallace, 549 U.S. at 388 (internal 11 citations omitted). 12 III. DISCUSSION 13 A. Plaintiff’s Section 1983 Claims Are Barred by the Statute of Limitations.2 14 Plaintiff’s claims here accrued when he was able to “file suit and obtain relief.” 15 Wallace, 549 U.S. at 388. At the latest, this occurred on the day he was released from 16 prison—on July 21, 2015. Therefore, under California’s two-year statute of limitations, 17 assuming no tolling, the last day he could have filed his complaint was July 21, 2017. 18 However, he filed this Complaint on September 6, 2018. The running of the limitations 19 period completed, Plaintiff’s Complaint is plainly untimely. 20 The California state law for tolling a limitations period in a personal injury claim 21 only allows tolling for prisoners while they are in custody, not to exceed two years. Cal. 22 Civ. Proc. Code § 352.1(a). Plaintiff was therefore not entitled to tolling upon his release 23 24 25 2 As an initial matter, Plaintiff asserts that Defendants’ motion to dismiss is untimely because it was served greater than 21 days after the complaint and was not in the original 26 pleadings. This Court nonetheless has the authority to dismiss any complaint that fails to 27 state a claim for which relief can be granted, including a claim that does not satisfy the statute of limitations. See 42 U.S.C. § 1997e(c)(1). As such, it is within the purview of 28 1 from prison on July 21, 2015, as he was no longer in custody after that date. See Ellis v. 2 City of San Diego, Cal., 176 F.3d 1183, 1189-90 (9th Cir. 1999). 3 Similarly, Plaintiff contends that his claims are subject to tolling because the 4 Prisoner Litigation Reform Act (PLRA) “requires that a prisoner challenging prison 5 conditions” must “exhaust all available remedies before filing a suit” under § 1983. (Doc. 6 No. 49 at 4 (citing 42 U.S.C. § 1997e(a).) However, on the day of his release on July 21, 7 2015, Plaintiff was no longer a “prisoner” to whom the PLRA applied. See Talamantes v. 8 Leyva, 575 F.3d 1021, 1024 (9th Cir. 2009); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 9 1999) (Litigants who file prison condition actions after release from confinement are no 10 longer “prisoners” for purposes of 42 USCS § 1997e(a), and therefore they need not satisfy 11 exhaustion requirements of that provision); see also Jackson v. Fong, 870 F.3d 928, 936 12 (9th Cir. 2017). Because Plaintiff was no longer a “prisoner,” there was no requirement to 13 exhaust his administrative remedies prior to filing his § 1983 suit, and he could have filed 14 suit on the day he was released. Accordingly, the statute of limitations is not tolled by the 15 PLRA. 16 Plaintiff also maintains that tolling is appropriate because Defendants “held onto” 17 the records and appeals related to his administrative remedial attempts between 2014 and 18 2015. Plaintiff contends that these documents were unnecessarily withheld from him so 19 that he was unable to name Defendants and file his claim until April 12, 2018. (See Doc. 20 No. 1 at 27.) However, Plaintiff also demonstrates no reasonable attempts to acquire those 21 same records until March 14, 2018, the first date he sent a letter to the CDCR Archives 22 Unit. (See id. at 26.) Moreover, Plaintiff had previously filed a timely unrelated lawsuit 23 against Defendants on July 20, 2016, and the suit was dismissed without prejudice on June 24 14, 2017, only one month before his limitations period in this case expired. While 25 demonstrating requisite impetus to commence timely litigation, the prior lawsuit also does 26 not entitle Plaintiff to tolling. See Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 27 1127 (9th Cir. 2008) (holding that voluntary dismissal of a claim does not toll the limitation 28 period). 1 In sum, Plaintiff filed his § 1983 complaint more than two years after the date of 2 accrual, and the facts Plaintiff presents simply do not toll the statute of limitations. The 3 Complaint is deficient on its face as to Plaintiff’s Fourth and Eighth Amendment claims 4 for over-incarceration, First Amendment claim for retaliation, Fourteenth Amendment 5 equal protection claim, Fifth Amendment due process claim, and Sixth Amendment right 6 to counsel claim. The Court therefore recommends the motion to dismiss be GRANTED 7 without leave to amend for all claims arising under 42 U.S.C. §§ 1983 and 1985. See 8 Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005) (“The absence of a 9 section 1983 deprivation of rights precludes a section 1985 conspiracy claim predicated on 10 the same allegations.”) 11 B. State Law Claims 12 California Government Code § 945.4 requires that a plaintiff suing a public entity 13 for damages must have presented the claim to the public entity within a statutory timeframe 14 prior to bringing suit. California’s Government Claims Act provides that a party seeking 15 to recover monetary damages for personal injury from a public entity must submit a claim 16 to the entity within six months after accrual. Cal. Gov. Code § 911.2; see also City of 17 Stockton v. Sup. Ct., 171 P.3d 20, 25 (Cal. 2007). Subject to exceptions not relevant here, 18 a “cause of action against a public employee . . . for injury resulting from an act . . . in the 19 scope of his employment as a public employee is barred if an action against the employing 20 public entity for such injury is barred.” Cal. Gov. Code § 950.2. Any suit filed against a 21 public entity after the denial of an administrative claim under § 945.4 must be commenced 22 within six months of the written notice of denial. Cal. Gov. Code § 945.6; see also Cal. 23 Gov. Code § 950.6; Silva v. Crain, 169 F.3d 608, 611 (9th Cir. 1999). This action, 24 however, commenced on September 6, 2018, over three years after the first VCGCB claim 25 and two years after the second VCGCB claim was denied and thus well outside the statute 26 27 28 1 of limitations. 2 The facts here illustrate that Plaintiff filed two separate, subsequent claims to the 3 VCGCB with associated late claims on April 7, 2015, and February 19, 2016. Those claims 4 were ultimately denied on August 20, 2015, and May 19, 2016, respectively. In the letters 5 to Plaintiff informing him of the denial of his claims (dated August 28, 2015, and May 27, 6 2016, respectively) the VCGCB included a warning, which stated in part: “If you wish to 7 file a court action on this matter, you must first petition the appropriate court for an order 8 relieving you from the provision of Government Code 945.4 (claims presentation 9 requirement). See Government Code Section 946.6. Such petition must be filed with the 10 court within six (6) months from the date your application for leave to present a claim was 11 denied.” (Doc. No. 47-1 at 19, 34 (emphasis added).) Plaintiff was thus well aware of the 12 six-month time period but failed to file this suit within that time. Accordingly, the state 13 law claims against the entity defendants here are untimely.4 14 IV. CONCLUSION 15 Plaintiff’s federal claims under 42 U.S.C. § 1983 as well as Plaintiff’s state law 16 claims are barred by the statute of limitations. Accordingly, this Court RECOMMENDS 17 that Defendants’ Motion to Dismiss be GRANTED and the Complaint be DISMISSED 18 without leave to amend. 19 This Report and Recommendation will be submitted to the United States District 20 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Federal 21 Rule of Civil Procedure 72(b). 22 23
24 3 The second VCGCB claim was filed over a year after accrual, therefore the Superior 25 Court would not have jurisdiction over the claim and it would have been barred after the VCGCB’s denial. See Cal. Gov. Code § 946.6. 26
27 4 The state claims against the individual Defendants are barred because where action against a public entity is barred, an action on the same alleged events against associated 28 1 IT IS ORDERED that no later than November 26, 2019, any party to this action 2 ||may file written objections with the Court and serve a copy on all parties. The document 3 || shall be captioned “Objections to Report and Recommendation.” 4 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the 5 ||Court and served on all parties no later than December 9, 2019. The parties are advised 6 || that failure to file objections within the specified time may waive the right to raise those 7 || objections on appeal of the Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 8 IT IS SO ORDERED. 9 || DATED: October 16, 2019 LM Ss 11 D Hon. William V. Gallo United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28