1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN KAKOWSKI, No. 2: 19-cv-0656 KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 17 Introduction 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. Pending before the court is defendant Silva’s motion to dismiss pursuant to 20 Federal Rule of Civil Procedure 12(b)(6) on the grounds that this action is barred by the statute of 21 limitations. For the reasons stated herein, the undersigned recommends that defendant’s motion 22 be denied. 23 Legal Standard for Motion to Dismiss 24 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 25 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 26 Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 27 729, 732 (9th Cir. 2001). When determining whether a claim has been stated, the court accepts as 28 true all well-pled factual allegations and construes them in the light most favorable to the 1 plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). While a 2 complaint need not contain detailed factual allegations, it “must contain sufficient factual matter, 3 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 4 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim 5 is facially plausible when it “allows the court to draw the reasonable inference that the defendant 6 is liable for the misconduct alleged.” Id. 7 Although a statute-of-limitations assertion is an affirmative defense, a defendant may still 8 raise a motion to dismiss based on the defense if the running of the limitations period is apparent 9 on the face of the complaint. See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) 10 (stating that, “[i]f the running of the statute is apparent on the face of the complaint, the defense 11 may be raised by a motion to dismiss”). “When a motion to dismiss is based on the running of 12 the statute of limitations, it can be granted only if the assertions of the complaint, read with the 13 required liberality, would not permit the plaintiff to prove that the statute was tolled.” Id.; see 14 also Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995) (“[A] complaint 15 cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that 16 would establish the timeliness of the claim”). 17 Plaintiff’s Claims 18 This action proceeds on the original complaint filed April 12, 2019, as to defendants Silva 19 and Deputy Daniele. (ECF No. 1.) All events occurred at the Sacramento County Jail where 20 plaintiff was housed as a pretrial detainee. (Id. at 4.) 21 Plaintiff alleges that on November 23, 2016, at approximately 1:30 a.m., defendant 22 Daniele told plaintiff that he was being moved. (Id. at 5.) Plaintiff alleges that the order to move 23 was made in retaliation for plaintiff filing a lawsuit in this court, case number 2:16-cv-2549 JAM 24 AC P, in which plaintiff alleged that defendant Daniele repeatedly opened plaintiff’s mail. (Id.) 25 Plaintiff also claimed that defendant Daniele ordered his move in retaliation for plaintiff assisting 26 his cellmate, inmate Rivera, with filing grievances against defendant Daniele. (Id.) Plaintiff 27 alleges that at the time of the move, defendant Daniele told inmate Rivera, “your grievances are 28 //// 1 not grievable, your cellie Kakowski is problem and I’m gonna deal with him. He’s a snitch!” 2 (Id.) 3 Plaintiff alleges that he was moved to a cell with a 200-pound, homosexual who made 4 repeated sexual advances toward plaintiff. (Id. at 6.) Plaintiff alleges that the night shift ignored 5 plaintiff’s calls on the emergency button. (Id.) Plaintiff alleges that he was placed in that cell 6 because defendant Daniele hoped that plaintiff would be assaulted. (Id.) 7 The next day, plaintiff was moved to a cell on the third floor that contained no hot water, 8 the air conditioning was on full blast despite it being winter, and the cold water trickled. (Id.) 9 Plaintiff alleges that on November 27, 2016, defendant Silva pulled plaintiff out to discuss 10 plaintiff’s grievance regarding being placed in the cell with the inmate who made sexual 11 advances. (Id. at 7.) Defendant Silva told plaintiff that he authorized Deputy Green to make this 12 move because plaintiff was having problems with defendant Daniele. (Id.) Plaintiff told 13 defendant Silva that he had no problems with defendant Daniele until she launched a harassment 14 campaign against him. (Id.) Plaintiff asked defendant Silva why he put plaintiff in a cell with an 15 inmate who threatened his safety. (Id.) Defendant Silva responded, “This is jail …I can do 16 anything I damn well please.” (Id.) Defendant Silva told plaintiff that because he claimed that 17 the inmate had sexually harassed him, he had no choice but to move plaintiff. (Id.) 18 Plaintiff alleges that on November 29, 2016, Deputy Daw “pulled him out” from the cell 19 that had no hot water, etc. (Id. at 8.) Deputy Daw told plaintiff that classification was not 20 responsible for his recent bed moves and apologized. (Id.) Deputy Daw asked plaintiff if he was 21 o.k. (Id.) Deputy Daw told plaintiff that defendants Silva and Daniele had made the call to put 22 him in the cell with no hot water, etc. (Id.) 23 Plaintiff goes on to describe other allegedly unconstitutional conditions he suffered as a 24 result of being housed in the third floor cell without hot water, etc. Plaintiff alleges that the water 25 in his cell worked when the plumber arrived. (Id. at 9.) Once the plumber left, the water turned 26 off again, as if someone flipped a switch. (Id.) Plaintiff alleges that he was offered outdoor 27 exercise time on only two occasions. (Id.) On both occasions, it was cold and raining. (Id.) 28 Plaintiff also alleges that he was denied access to telephones to consult with his investigator. (Id.) 1 On February 18, 2017, plaintiff was moved back to the fourth floor.1 (Id. at 10.) On the 2 fourth floor, plaintiff and defendant Daniele were again in contact. (Id.) Plaintiff alleges that he 3 was removed from these conditions after the Prison Law Office got involved. (Id.) 4 Discussion 5 On September 20, 2019, the undersigned found that plaintiff had stated potentially 6 colorable Fourteenth Amendment claims against defendant Silva based on the allegations that 7 defendant Silva moved plaintiff to a cell occupied by an inmate who made sexual advances 8 toward plaintiff and moved plaintiff to the cell without hot water, etc. (ECF No. 10 at 5.) 9 Defendant Silva argues that plaintiff’s claims are barred by the statute of limitations. 10 Federal law determines when a civil rights claim brought pursuant to 42 U.S.C. § 1983 11 accrues. Wallace v. Kato, 549 U.S.
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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 BRIAN KAKOWSKI, No. 2: 19-cv-0656 KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 17 Introduction 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. Pending before the court is defendant Silva’s motion to dismiss pursuant to 20 Federal Rule of Civil Procedure 12(b)(6) on the grounds that this action is barred by the statute of 21 limitations. For the reasons stated herein, the undersigned recommends that defendant’s motion 22 be denied. 23 Legal Standard for Motion to Dismiss 24 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 25 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 26 Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 27 729, 732 (9th Cir. 2001). When determining whether a claim has been stated, the court accepts as 28 true all well-pled factual allegations and construes them in the light most favorable to the 1 plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). While a 2 complaint need not contain detailed factual allegations, it “must contain sufficient factual matter, 3 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 4 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim 5 is facially plausible when it “allows the court to draw the reasonable inference that the defendant 6 is liable for the misconduct alleged.” Id. 7 Although a statute-of-limitations assertion is an affirmative defense, a defendant may still 8 raise a motion to dismiss based on the defense if the running of the limitations period is apparent 9 on the face of the complaint. See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) 10 (stating that, “[i]f the running of the statute is apparent on the face of the complaint, the defense 11 may be raised by a motion to dismiss”). “When a motion to dismiss is based on the running of 12 the statute of limitations, it can be granted only if the assertions of the complaint, read with the 13 required liberality, would not permit the plaintiff to prove that the statute was tolled.” Id.; see 14 also Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995) (“[A] complaint 15 cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that 16 would establish the timeliness of the claim”). 17 Plaintiff’s Claims 18 This action proceeds on the original complaint filed April 12, 2019, as to defendants Silva 19 and Deputy Daniele. (ECF No. 1.) All events occurred at the Sacramento County Jail where 20 plaintiff was housed as a pretrial detainee. (Id. at 4.) 21 Plaintiff alleges that on November 23, 2016, at approximately 1:30 a.m., defendant 22 Daniele told plaintiff that he was being moved. (Id. at 5.) Plaintiff alleges that the order to move 23 was made in retaliation for plaintiff filing a lawsuit in this court, case number 2:16-cv-2549 JAM 24 AC P, in which plaintiff alleged that defendant Daniele repeatedly opened plaintiff’s mail. (Id.) 25 Plaintiff also claimed that defendant Daniele ordered his move in retaliation for plaintiff assisting 26 his cellmate, inmate Rivera, with filing grievances against defendant Daniele. (Id.) Plaintiff 27 alleges that at the time of the move, defendant Daniele told inmate Rivera, “your grievances are 28 //// 1 not grievable, your cellie Kakowski is problem and I’m gonna deal with him. He’s a snitch!” 2 (Id.) 3 Plaintiff alleges that he was moved to a cell with a 200-pound, homosexual who made 4 repeated sexual advances toward plaintiff. (Id. at 6.) Plaintiff alleges that the night shift ignored 5 plaintiff’s calls on the emergency button. (Id.) Plaintiff alleges that he was placed in that cell 6 because defendant Daniele hoped that plaintiff would be assaulted. (Id.) 7 The next day, plaintiff was moved to a cell on the third floor that contained no hot water, 8 the air conditioning was on full blast despite it being winter, and the cold water trickled. (Id.) 9 Plaintiff alleges that on November 27, 2016, defendant Silva pulled plaintiff out to discuss 10 plaintiff’s grievance regarding being placed in the cell with the inmate who made sexual 11 advances. (Id. at 7.) Defendant Silva told plaintiff that he authorized Deputy Green to make this 12 move because plaintiff was having problems with defendant Daniele. (Id.) Plaintiff told 13 defendant Silva that he had no problems with defendant Daniele until she launched a harassment 14 campaign against him. (Id.) Plaintiff asked defendant Silva why he put plaintiff in a cell with an 15 inmate who threatened his safety. (Id.) Defendant Silva responded, “This is jail …I can do 16 anything I damn well please.” (Id.) Defendant Silva told plaintiff that because he claimed that 17 the inmate had sexually harassed him, he had no choice but to move plaintiff. (Id.) 18 Plaintiff alleges that on November 29, 2016, Deputy Daw “pulled him out” from the cell 19 that had no hot water, etc. (Id. at 8.) Deputy Daw told plaintiff that classification was not 20 responsible for his recent bed moves and apologized. (Id.) Deputy Daw asked plaintiff if he was 21 o.k. (Id.) Deputy Daw told plaintiff that defendants Silva and Daniele had made the call to put 22 him in the cell with no hot water, etc. (Id.) 23 Plaintiff goes on to describe other allegedly unconstitutional conditions he suffered as a 24 result of being housed in the third floor cell without hot water, etc. Plaintiff alleges that the water 25 in his cell worked when the plumber arrived. (Id. at 9.) Once the plumber left, the water turned 26 off again, as if someone flipped a switch. (Id.) Plaintiff alleges that he was offered outdoor 27 exercise time on only two occasions. (Id.) On both occasions, it was cold and raining. (Id.) 28 Plaintiff also alleges that he was denied access to telephones to consult with his investigator. (Id.) 1 On February 18, 2017, plaintiff was moved back to the fourth floor.1 (Id. at 10.) On the 2 fourth floor, plaintiff and defendant Daniele were again in contact. (Id.) Plaintiff alleges that he 3 was removed from these conditions after the Prison Law Office got involved. (Id.) 4 Discussion 5 On September 20, 2019, the undersigned found that plaintiff had stated potentially 6 colorable Fourteenth Amendment claims against defendant Silva based on the allegations that 7 defendant Silva moved plaintiff to a cell occupied by an inmate who made sexual advances 8 toward plaintiff and moved plaintiff to the cell without hot water, etc. (ECF No. 10 at 5.) 9 Defendant Silva argues that plaintiff’s claims are barred by the statute of limitations. 10 Federal law determines when a civil rights claim brought pursuant to 42 U.S.C. § 1983 11 accrues. Wallace v. Kato, 549 U.S. 384, 388 (2007) (“[T]he accrual date of a § 1983 cause of 12 action is a question of federal law that is not resolved by reference to state law.”); Western Ctr. 13 for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000) (“While the statute of 14 limitations period is derived from state law, federal law determines when the statute of limitations 15 period accrues.”). 16 Pursuant to “federal rules conforming in general to common-law tort principles[,]” “it is 17 the standard rule that accrual occurs when the plaintiff has a complete and present cause of action, 18 that is, when the plaintiff can file suit and obtain relief.” Id. (internal quotation marks, brackets 19 and citations omitted). Put another way, “[u]nder federal law, a claim accrues when the plaintiff 20 knows or has reason to know of the injury which is the basis of the action.” TwoRivers v. Lewis, 21 174 F.3d 987, 991 (9th Cir. 1999). 22 In this case, plaintiff’s claims against defendant Silva accrued in November 2016. The 23 undersigned next applies the statute of limitations applicable to these claims. The undersigned 24 applies California’s “statute of limitations for personal injury actions, along with forum state’s 25 law regarding tolling, including equitable tolling, except to the extent any of these laws is 26 inconsistent with federal law.” Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007) 27 1 In the complaint, plaintiff alleges that he was returned to the fourth floor on February 18, 2016. 28 (Id. at 10.) It is clear that plaintiff meant 2017 rather than 2016. 1 (citation and internal quotation marks omitted); see also Jones v. Blanas, 393 F.3d 918, 927 (9th 2 Cir. 2004) (stating that courts apply a state’s statute of limitations for personal injury actions to 3 claims brought pursuant to 42 U.S.C. § 1983). 4 Plaintiff’s claims are subject to the two-year statute of limitations set forth in California 5 Code of Civil Procedure 335.1. See Canatella, 486 F.3d at 1132. Plaintiff filed this action on 6 April 12, 2019, which is more than two years after November 2016. Therefore, this action is 7 barred by the statute of limitations unless plaintiff is entitled to tolling. 8 California Code of Civil Procedure § 352.1(a) provides that the applicable statute of 9 limitations is statutorily tolled for up to two years when a plaintiff is “imprisoned on a criminal 10 charge, or in execution under the sentence of a criminal court for a term less than for life,” at the 11 time that the claim accrues. In Elliott v. City of Union City, the Ninth Circuit analyzed California 12 Code of Civil Procedure § 352(a)(3), § 352.1’s predecessor statute, and held that “‘actual, 13 uninterrupted incarceration is the touchstone’ for assessing tolling under § 352(a)(3), which 14 covers all post-arrest custody” because “there is little difference between being incarcerated pre- 15 arraignment, pre-conviction or post-conviction[.]” Elliott, 25 F.3d 800, 803 (9th Cir. 1994). 16 In the motion to dismiss, defendant argues that plaintiff is not entitled to tolling pursuant 17 to § 352.1(a), citing Austin v. Medicis, 21 Cal.App.5th 577, 597 (2018). In Austin v. Medicis, 18 the California Second District Court of Appeal held, as a matter of first impression that “a would- 19 be plaintiff is ‘imprisoned on a criminal charge’ within the meaning of section 352.1 if he or she 20 is serving a term of imprisonment in the state prison.” Austin v. Medicis, 21 Cal. App. 5th at 21 597. The Austin court found that, therefore, statutory tolling pursuant to § 352.1 does not apply 22 to claims that accrue while a would-be plaintiff is a pretrial detainee in a county jail. Id. 23 Because the Ninth Circuit has not addressed the scope of § 352.1(a)’s applicability after 24 the Austin decision was issued in 2018, Elliott remains precedent in the Ninth Circuit. Therefore, 25 “this Court must apply the principles of the Elliott decision to Plaintiff’s [federal claims] unless 26 and until the Ninth Circuit holds otherwise.” Baros v. Ramirez, 2019 WL 3849171, at *9 (C.D. 27 Cal. June 5, 2019); see also Hart v. Massanari, 266 F.3d 1155, 1170-71 (9th Cir. 2001) (stating 28 that “[c]ircuit law ... binds all courts within a particular circuit” and that “[b]inding authority must 1 be followed unless and until overruled by a body competent to do so”). 2 When plaintiff filed the instant action on April 12, 2019, he was housed in state prison. If 3 plaintiff was incarcerated without interruption from November 2016 through the date this action 4 was filed, then plaintiff is entitled to tolling pursuant to § 352.1(a) and this action is not time 5 barred. While it seems likely that plaintiff has been continuously incarcerated, the undersigned 6 cannot definitively make this finding. Therefore, defendant’s motion to dismiss should be denied 7 because plaintiff may be able to demonstrate that he is entitled to tolling pursuant to § 352.1(a).2 8 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall appoint a 9 district judge to this action; and 10 IT IS HEREBY RECOMMENDED that defendant Silva’s motion to dismiss (ECF No. 11 18) be denied. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 17 objections shall be filed and served within fourteen days after service of the objections. 18 //// 19 //// 20 //// 21 ////
22 2 In the motion to dismiss, defendants cite Hoffman v. Yderraga, 2019 WL 2448314 (E.D. Cal. 23 2019) for the proposition that plaintiff is not entitled to tolling pursuant to § 352.1. In Hoffman v. Yderraga, the undersigned recommended, in relevant part, that a motion to dismiss on the grounds 24 that the complaint was barred by the statute of limitations be denied. The undersigned found that Austin v. Medicis, 21 Cal.App.5th 577 (2018) may be applicable, citing Shaw v. Sacramento 25 County, 343 F.Supp.3d 919 (E.D. Cal. 2018). 2019 WL 2448314 at *4. In Shaw, the district court found that the court in Elliott focused on the meaning of the tolling statute within the 26 context of continuous incarceration. 343 F.Supp. at 924. In Shaw, the district court found the 27 reasoning of Elliott inapplicable to the facts of Shaw, where the plaintiff spent one night in jail. Id. Because plaintiff in the instant action may be able to demonstrate continuous incarceration, 28 the reasoning of the district court in Shaw does not bar plaintiff’s claims. 1 The parties are advised that failure to file objections within the specified time may waive 2 | the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: March 4, 2020 ‘ Fens Arn 5 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE Kak656.57 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28