7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 EDWARD TORRES, Case No. 1:22-cv-01536-NODJ-EPG (PC) 12 Plaintiff, ORDER FOR SUPPLEMENTAL BRIEFING
13 v. (ECF Nos. 23, 35)
14 JAYSON QUICK, et al., 15 Defendants. 16 17 Edward Torres is a state prisoner proceeding pro se and in forma pauperis in this civil 18 rights action under 42 U.S.C. § 1983. Plaintiff filed his complaint in November 2022, alleging 19 that in April of 2019, he was assaulted by correctional officers and was denied medical care for the injuries he suffered during this event. Defendants moved to dismiss this case based on the 20 two-year statute of limitations. 21 Because the parties’ briefing on the motion to dismiss does not address certain issues that 22 may be relevant to resolving their motions, the Court orders parties to submit supplemental 23 briefing as follows. 24 I. BACKGROUND 25 Plaintiff filed his Complaint on November 30, 2022. (ECF No. 1). He alleged that in late 26 March or April of 2019, while incarcerated at Madera County Jail as a prisoner, he was assaulted 27 by correctional officers Quick, Garza, Garcia, Valadez, Prince, and Martinez, and that nurse 28 1 Ontiveros denied him medical care for his injuries. (Id.) After screening, this case proceeds on 2 Plaintiff’s Eighth Amendment excessive force and failure to protect claims against the 3 correctional officers and the Eighth Amendment claim against Ontiveros for deliberate 4 indifference to his serious medical needs. (ECF Nos. 13, 14, 18, 22). With respect to exhaustion of administrative remedies, Plaintiff stated that “he was 5 consistently denied all requests for inmate grievance forms, but he has now exhausted his 6 administrative remedies with respect to all his claims and all Defendants.” (ECF No. 1 at 10). 7 Plaintiff did not supply any further information regarding the time period during which his 8 grievances were pending or the duration of the process. 9 All Defendants have been served. Defendants Prince and Valadez have not appeared in 10 this action. In lieu of filing an Answer, Defendants Quick and Martinez filed a motion to dismiss 11 under Fed. R. Civ. P. 12(b)(6) based on statute of limitations (ECF No. 23), in which Defendants 12 Garza, Garcia, and Ontiveros have also joined. (ECF Nos. 26, 31, 36). Defendant Ontiveros filed 13 her own motion to dismiss, also raising the statute of limitations defense. (ECF No. 35). 14 Defendants argue that, since Plaintiff filed his lawsuit over three and a half years after the 15 incident giving rise to his lawsuit took place, California’s two-year statute of limitations bars 16 Plaintiff’s claims. (ECF No. 23-1 at 1; ECF No. 35 at 4). They also argue that equitable tolling 17 under California’s Emergency Rule 9 related to COVID-19 pandemic does not save his claims, 18 since it only extended the time for Plaintiff to file his action by 178 days. (ECF No. 23-1 at 2–3; 19 ECF No. 35 at 4–6). Even with that extension, Defendants argue, Plaintiff’s complaint is still 20 untimely by over a year. 21 After being ordered to respond (ECF No. 34), Plaintiff filed opposition, stating he opposes 22 all motions to dismiss but offering no legal argument. (ECF No. 38). Defendants Garcia, Garza, 23 Martinez, and Quick filed a Reply (ECF No. 39) and so did Defendant Ontiveros (ECF No. 40). II. LEGAL STANDARDS 24 “A motion to dismiss based on the running of the statute of limitations period may be 25 granted only ‘if the assertions of the complaint, read with the required liberality, would not permit 26 the plaintiff to prove that the statute was tolled.’” Supermail Cargo, Inc. v. United States, 68 F.3d 27 1204, 1206–07 (9th Cir. 1995) (quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 28 1 1980)). The Ninth Circuit has reversed dismissals where the applicability of the equitable tolling 2 doctrine depended upon factual questions not clearly resolved in the pleadings. See Cervantes v. 3 City of San Diego, 5 F.3d 1273, 1277 (9th Cir. 1993); Emrich v. Touche Ross & Co., 846 F.2d 4 1190, 1199 (9th Cir. 1988); Donoghue v. Orange County, 848 F.2d 926, 931 (9th Cir. 1987). California’s two-year statute of limitations for personal injury actions applies to § 1983 5 claims. Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014); 6 Cal. Civ. Proc. Code § 335.1. 7 In addition, California Code of Civil Procedure § 352.1(a) provides an extra two years for 8 those imprisoned “for a term less than for life” when the cause of action accrues. 9 This limitations period can also be tolled for various reasons, including equitable tolling. 10 Whether Plaintiff is entitled to equitable tolling is also determined by California law, except to 11 the extent that California laws are inconsistent with federal law. Jones v. Blanas, 393 F.3d 918, 12 927 (9th Cir. 2004). Equitable tolling “operates independently of the literal wording of the Code 13 of Civil Procedure to suspend or extend a statute of limitations as necessary to ensure 14 fundamental practicality and fairness.” Jones, 393 F.3d at 928 (quoting Lantzy v. Centex Homes, 15 31 Cal. 4th 363, 370 (2003)) (internal quotation marks omitted). 16 “Where exhaustion of an administrative remedy is mandatory prior to filing suit, equitable 17 tolling is automatic: ‘It has long been settled in this and other jurisdictions that whenever the 18 exhaustion of administrative remedies is a prerequisite to the initiation of a civil action, the 19 running of the limitations period is tolled during the time consumed by the administrative 20 proceeding.’” McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 101 (2008) (quoting 21 Elkins v. Derby, 12 Cal. 3d 410, 414 (1974)); see also Brown v. Valoff, 422 F.3d 926, 943 (9th 22 Cir. 2005) (“[T]he applicable statute of limitations must be tolled while a prisoner completes the 23 mandatory exhaustion process.”). III. ANALYSIS 24 In their motions, Defendants address the applicable statute of limitations, Cal. Civ. P. 25 Code § 335.1, and equitable tolling as a result of Emergency Rule 9 prompted by the COVID-19 26 pandemic, Cal. Rules of Court, appen. I, emergency rule 9. Their motions fail to address either 27 (1) California’s tolling statute extending the limitations period by two years when the cause of 28 1 action accrues while plaintiff is incarcerated for a term less than life, Cal. Civ. P. Code § 352.1(a), 2 | or (2) equitable tolling, if any, during exhaustion of administrative remedies, McDonald, 45 Cal. 3 | 4th at 101. 4 “An affirmative defense cannot serve as a basis for dismissal unless it is obvious on the 5 face of the complaint.” Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013); 6 accord Gomez v. Quicken Loans, Inc., 629 F. App’x 799, 800-01, 2015 WL 6655476, at *1 (9th 7 Cir. Nov. 2, 2015).
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7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 EDWARD TORRES, Case No. 1:22-cv-01536-NODJ-EPG (PC) 12 Plaintiff, ORDER FOR SUPPLEMENTAL BRIEFING
13 v. (ECF Nos. 23, 35)
14 JAYSON QUICK, et al., 15 Defendants. 16 17 Edward Torres is a state prisoner proceeding pro se and in forma pauperis in this civil 18 rights action under 42 U.S.C. § 1983. Plaintiff filed his complaint in November 2022, alleging 19 that in April of 2019, he was assaulted by correctional officers and was denied medical care for the injuries he suffered during this event. Defendants moved to dismiss this case based on the 20 two-year statute of limitations. 21 Because the parties’ briefing on the motion to dismiss does not address certain issues that 22 may be relevant to resolving their motions, the Court orders parties to submit supplemental 23 briefing as follows. 24 I. BACKGROUND 25 Plaintiff filed his Complaint on November 30, 2022. (ECF No. 1). He alleged that in late 26 March or April of 2019, while incarcerated at Madera County Jail as a prisoner, he was assaulted 27 by correctional officers Quick, Garza, Garcia, Valadez, Prince, and Martinez, and that nurse 28 1 Ontiveros denied him medical care for his injuries. (Id.) After screening, this case proceeds on 2 Plaintiff’s Eighth Amendment excessive force and failure to protect claims against the 3 correctional officers and the Eighth Amendment claim against Ontiveros for deliberate 4 indifference to his serious medical needs. (ECF Nos. 13, 14, 18, 22). With respect to exhaustion of administrative remedies, Plaintiff stated that “he was 5 consistently denied all requests for inmate grievance forms, but he has now exhausted his 6 administrative remedies with respect to all his claims and all Defendants.” (ECF No. 1 at 10). 7 Plaintiff did not supply any further information regarding the time period during which his 8 grievances were pending or the duration of the process. 9 All Defendants have been served. Defendants Prince and Valadez have not appeared in 10 this action. In lieu of filing an Answer, Defendants Quick and Martinez filed a motion to dismiss 11 under Fed. R. Civ. P. 12(b)(6) based on statute of limitations (ECF No. 23), in which Defendants 12 Garza, Garcia, and Ontiveros have also joined. (ECF Nos. 26, 31, 36). Defendant Ontiveros filed 13 her own motion to dismiss, also raising the statute of limitations defense. (ECF No. 35). 14 Defendants argue that, since Plaintiff filed his lawsuit over three and a half years after the 15 incident giving rise to his lawsuit took place, California’s two-year statute of limitations bars 16 Plaintiff’s claims. (ECF No. 23-1 at 1; ECF No. 35 at 4). They also argue that equitable tolling 17 under California’s Emergency Rule 9 related to COVID-19 pandemic does not save his claims, 18 since it only extended the time for Plaintiff to file his action by 178 days. (ECF No. 23-1 at 2–3; 19 ECF No. 35 at 4–6). Even with that extension, Defendants argue, Plaintiff’s complaint is still 20 untimely by over a year. 21 After being ordered to respond (ECF No. 34), Plaintiff filed opposition, stating he opposes 22 all motions to dismiss but offering no legal argument. (ECF No. 38). Defendants Garcia, Garza, 23 Martinez, and Quick filed a Reply (ECF No. 39) and so did Defendant Ontiveros (ECF No. 40). II. LEGAL STANDARDS 24 “A motion to dismiss based on the running of the statute of limitations period may be 25 granted only ‘if the assertions of the complaint, read with the required liberality, would not permit 26 the plaintiff to prove that the statute was tolled.’” Supermail Cargo, Inc. v. United States, 68 F.3d 27 1204, 1206–07 (9th Cir. 1995) (quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 28 1 1980)). The Ninth Circuit has reversed dismissals where the applicability of the equitable tolling 2 doctrine depended upon factual questions not clearly resolved in the pleadings. See Cervantes v. 3 City of San Diego, 5 F.3d 1273, 1277 (9th Cir. 1993); Emrich v. Touche Ross & Co., 846 F.2d 4 1190, 1199 (9th Cir. 1988); Donoghue v. Orange County, 848 F.2d 926, 931 (9th Cir. 1987). California’s two-year statute of limitations for personal injury actions applies to § 1983 5 claims. Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014); 6 Cal. Civ. Proc. Code § 335.1. 7 In addition, California Code of Civil Procedure § 352.1(a) provides an extra two years for 8 those imprisoned “for a term less than for life” when the cause of action accrues. 9 This limitations period can also be tolled for various reasons, including equitable tolling. 10 Whether Plaintiff is entitled to equitable tolling is also determined by California law, except to 11 the extent that California laws are inconsistent with federal law. Jones v. Blanas, 393 F.3d 918, 12 927 (9th Cir. 2004). Equitable tolling “operates independently of the literal wording of the Code 13 of Civil Procedure to suspend or extend a statute of limitations as necessary to ensure 14 fundamental practicality and fairness.” Jones, 393 F.3d at 928 (quoting Lantzy v. Centex Homes, 15 31 Cal. 4th 363, 370 (2003)) (internal quotation marks omitted). 16 “Where exhaustion of an administrative remedy is mandatory prior to filing suit, equitable 17 tolling is automatic: ‘It has long been settled in this and other jurisdictions that whenever the 18 exhaustion of administrative remedies is a prerequisite to the initiation of a civil action, the 19 running of the limitations period is tolled during the time consumed by the administrative 20 proceeding.’” McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 101 (2008) (quoting 21 Elkins v. Derby, 12 Cal. 3d 410, 414 (1974)); see also Brown v. Valoff, 422 F.3d 926, 943 (9th 22 Cir. 2005) (“[T]he applicable statute of limitations must be tolled while a prisoner completes the 23 mandatory exhaustion process.”). III. ANALYSIS 24 In their motions, Defendants address the applicable statute of limitations, Cal. Civ. P. 25 Code § 335.1, and equitable tolling as a result of Emergency Rule 9 prompted by the COVID-19 26 pandemic, Cal. Rules of Court, appen. I, emergency rule 9. Their motions fail to address either 27 (1) California’s tolling statute extending the limitations period by two years when the cause of 28 1 action accrues while plaintiff is incarcerated for a term less than life, Cal. Civ. P. Code § 352.1(a), 2 | or (2) equitable tolling, if any, during exhaustion of administrative remedies, McDonald, 45 Cal. 3 | 4th at 101. 4 “An affirmative defense cannot serve as a basis for dismissal unless it is obvious on the 5 face of the complaint.” Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013); 6 accord Gomez v. Quicken Loans, Inc., 629 F. App’x 799, 800-01, 2015 WL 6655476, at *1 (9th 7 Cir. Nov. 2, 2015). Further, before dismissing the time-barred claims, plaintiff must first be given 8 an opportunity to address equitable tolling. See Givens v. City & County of San Francisco, 269 F.
9 App’x 685, 685-86 (9th Cir. 2008) (vacating and remanding district court’s dismissal of complaint because plaintiff had not been afforded opportunity to address equitable tolling) (citing 8 Cervantes, 5 F.3d at 1276-77 (noting dismissal on statute of limitations grounds is disfavored where matters outside the complaint are not considered and where equitable tolling may apply)). 12 IV. CONCLUSIONS Accordingly, IT IS ORDERED that: 1. No later than February 23, 2024, all parties shall file supplemental briefing no 1S longer than 10 pages each, addressing if Defendants’ motions may be granted in 16 light of Cal. Civ. P. Code § 352.1(a) and/or equitable tolling during the period of 17 exhaustion of administrative remedies. 18 2. If Plaintiff fails to comply with this order, the Court may deem the failure to oppose 19 a dispositive motion as a waiver of any opposition to that motion, and may 20 recommend that the motion be granted on that basis. Alternatively, the Court may 21 recommend that this action be dismissed because of Plaintiffs failure to prosecute 22 and failure to comply with a court order. 23 IT IS SO ORDERED. 24 55 | Dated: _ January 11, 2024 [spe ey — UNITED STATES MAGISTRATE JUDGE 26 27 28