1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NATHAN LAMONT PRESTON, Case No. 20-cv-06427-SI
8 Plaintiff, ORDER TO SHOW CAUSE RE. 9 v. STATUTE OF LIMITATIONS PROBLEM 10 ALMA POSADA, Re: Dkt. No. 1 11 Defendant.
12 13 Nathan Lamont Preston, an inmate currently housed at the R. J. Donovan Correctional 14 Facility in San Diego, filed this pro se civil rights action under 42 U.S.C. § 1983. The complaint is 15 now before the Court for review under 28 U.S.C. § 1915A. 16 17 BACKGROUND 18 The complaint alleges a claim about an incident that occurred almost twelve years before the 19 complaint was filed, when Preston called the California Employment Development Department 20 (EDD) to file for unemployment benefits in October 2008. He alleges that EDD claims processor 21 Alma Posada answered the call in San Francisco and used a racial slur against him as soon as she 22 recognized he was African-American, said that he did not have a claim, and hung up the phone. 23 Docket No. 1 at 3-4. Preston allegedly called back to complain about Posada’s “racially motivated 24 denial of unemployment benefits” and to continue processing his unemployment application; he 25 allegedly was told “there’s nothing you can do.” Id. at 4. Posada and others at the EDD allegedly 26 did not inform Preston of his appeal rights when they denied his application. 27 Preston eventually filed a late application to obtain unemployment benefits. On January 30, 1 was eligible for benefits under California Unemployment Insurance Code § 1253(2) from October 2 19, 2008 onward “provided the claimant is otherwise eligible.” Docket No. 1 at 10. Preston 3 complains that, even after the administrative law judge granted relief in January 2019, Posada and 4 others at the EDD did not inform Preston of his appeal rights, process his claim, or pay benefits for 5 the period during which he was eligible. (The first page of the decision by the administrative law 6 judge states that it is final unless appealed within thirty days, states that there is a notice attached 7 explaining how to file an appeal, and provides a telephone number for successful claimants to call 8 with questions regarding benefits. Id. at 7.) 9 10 DISCUSSION 11 A federal court must engage in a preliminary screening of any case in which a prisoner seeks 12 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 13 § 1915A(a). The court must identify any cognizable claims, and dismiss any claims which are 14 frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief 15 from a defendant who is immune from such relief. See id. at § 1915A(b)(1),(2). Pro se complaints 16 must be liberally construed. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 17 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right 18 secured by the Constitution or laws of the United States was violated and (2) that the alleged 19 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 20 U.S. 42, 48 (1988). 21 The Eleventh Amendment to the U.S. Constitution bars from the federal courts suits against 22 a state by its own citizens, citizens of another state, or citizens or subjects of any foreign state, absent 23 consent to the filing of such suit. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-38 (1985). 24 Eleventh Amendment immunity also extends to suits against an arm of the state. As a state agency, 25 the EDD is an “arm of the state” and not a “person” under § 1983. See Will v. Michigan Dep't of 26 State Police, 491 U.S. 58, 90 (1989). Because a suit against a state actor in his or her official 27 capacity is no different from a suit against the state itself, the Eleventh Amendment also bars 1 169-70 (1985); see also Wood v. Sergeant, 694 F.2d 1159, 1161 (9th Cir. 1982) (EDD and California 2 Unemployment Insurance Appeals Board have 11th Amendment immunity). Preston cannot pursue 3 a claim in this court to obtain his unemployment benefits from the California EDD or from Posada 4 in her official capacity because they have Eleventh Amendment immunity against any such claim. 5 The Eleventh Amendment does not, however, bar a suit against an individual defendant sued 6 in her individual capacity. Here, assuming arguendo that a separate equal protection claim might 7 exist against Posada based on the allegation that she used a racial slur and made a race-based 8 decision to deny Preston’s request for unemployment benefits, the claim has a different problem: it 9 appears to be barred by the statute of limitations because it was not brought until almost twelve 10 years after the alleged racial slur and denial of benefits was took place. 11 Section 1983 does not contain its own limitations period, so the court looks to the limitations 12 period of the forum state’s statute of limitations for personal injury torts. See Elliott v. City of Union 13 City, 25 F.3d 800, 802 (9th Cir. 1994). California’s statute of limitations period for personal injury 14 torts is two years, and the statute of limitations period for § 1983 claims is two years. See 15 Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Cal. Civ. Proc. Code § 335.1; Elliott, 25 16 F.3d at 802. It is federal law, however, that determines when a cause of action accrues and the 17 statute of limitations begins to run in a § 1983 action. Wallace v. Kato, 549 U.S. 384, 388 (2007); 18 Elliott, 25 F.3d at 801-02. Under federal law, a claim generally accrues when the plaintiff knows 19 or has reason to know of the injury which is the basis of the action. See Elliott, 25 F.3d at 802. 20 Incarceration of the plaintiff is a disability that may toll the statute for a maximum of two 21 years, but only for a plaintiff who is in prison “for a term less than for life” and is under the disability 22 at the time the cause of action accrues. See Cal. Civ. Proc. Code § 352.1. The two years of tolling 23 for the disability of incarceration applies only to claims for damages and does not apply to claims 24 for injunctive or declaratory relief. See id. at § 352.1(c). 25 The limitations period may be subject to equitable tolling. Under California law, equitable 26 tolling “‘reliev[es] plaintiff from the bar of a limitations statute when, possessing several legal 27 remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries 1 v. California, 21 Cal. 3d 313, 317 (1978)). Thus, in an appropriate case, the statute of limitations 2 || might be tolled for time spent pursuing a remedy in another forum before filing the claim in federal 3 court.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NATHAN LAMONT PRESTON, Case No. 20-cv-06427-SI
8 Plaintiff, ORDER TO SHOW CAUSE RE. 9 v. STATUTE OF LIMITATIONS PROBLEM 10 ALMA POSADA, Re: Dkt. No. 1 11 Defendant.
12 13 Nathan Lamont Preston, an inmate currently housed at the R. J. Donovan Correctional 14 Facility in San Diego, filed this pro se civil rights action under 42 U.S.C. § 1983. The complaint is 15 now before the Court for review under 28 U.S.C. § 1915A. 16 17 BACKGROUND 18 The complaint alleges a claim about an incident that occurred almost twelve years before the 19 complaint was filed, when Preston called the California Employment Development Department 20 (EDD) to file for unemployment benefits in October 2008. He alleges that EDD claims processor 21 Alma Posada answered the call in San Francisco and used a racial slur against him as soon as she 22 recognized he was African-American, said that he did not have a claim, and hung up the phone. 23 Docket No. 1 at 3-4. Preston allegedly called back to complain about Posada’s “racially motivated 24 denial of unemployment benefits” and to continue processing his unemployment application; he 25 allegedly was told “there’s nothing you can do.” Id. at 4. Posada and others at the EDD allegedly 26 did not inform Preston of his appeal rights when they denied his application. 27 Preston eventually filed a late application to obtain unemployment benefits. On January 30, 1 was eligible for benefits under California Unemployment Insurance Code § 1253(2) from October 2 19, 2008 onward “provided the claimant is otherwise eligible.” Docket No. 1 at 10. Preston 3 complains that, even after the administrative law judge granted relief in January 2019, Posada and 4 others at the EDD did not inform Preston of his appeal rights, process his claim, or pay benefits for 5 the period during which he was eligible. (The first page of the decision by the administrative law 6 judge states that it is final unless appealed within thirty days, states that there is a notice attached 7 explaining how to file an appeal, and provides a telephone number for successful claimants to call 8 with questions regarding benefits. Id. at 7.) 9 10 DISCUSSION 11 A federal court must engage in a preliminary screening of any case in which a prisoner seeks 12 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 13 § 1915A(a). The court must identify any cognizable claims, and dismiss any claims which are 14 frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief 15 from a defendant who is immune from such relief. See id. at § 1915A(b)(1),(2). Pro se complaints 16 must be liberally construed. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 17 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right 18 secured by the Constitution or laws of the United States was violated and (2) that the alleged 19 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 20 U.S. 42, 48 (1988). 21 The Eleventh Amendment to the U.S. Constitution bars from the federal courts suits against 22 a state by its own citizens, citizens of another state, or citizens or subjects of any foreign state, absent 23 consent to the filing of such suit. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-38 (1985). 24 Eleventh Amendment immunity also extends to suits against an arm of the state. As a state agency, 25 the EDD is an “arm of the state” and not a “person” under § 1983. See Will v. Michigan Dep't of 26 State Police, 491 U.S. 58, 90 (1989). Because a suit against a state actor in his or her official 27 capacity is no different from a suit against the state itself, the Eleventh Amendment also bars 1 169-70 (1985); see also Wood v. Sergeant, 694 F.2d 1159, 1161 (9th Cir. 1982) (EDD and California 2 Unemployment Insurance Appeals Board have 11th Amendment immunity). Preston cannot pursue 3 a claim in this court to obtain his unemployment benefits from the California EDD or from Posada 4 in her official capacity because they have Eleventh Amendment immunity against any such claim. 5 The Eleventh Amendment does not, however, bar a suit against an individual defendant sued 6 in her individual capacity. Here, assuming arguendo that a separate equal protection claim might 7 exist against Posada based on the allegation that she used a racial slur and made a race-based 8 decision to deny Preston’s request for unemployment benefits, the claim has a different problem: it 9 appears to be barred by the statute of limitations because it was not brought until almost twelve 10 years after the alleged racial slur and denial of benefits was took place. 11 Section 1983 does not contain its own limitations period, so the court looks to the limitations 12 period of the forum state’s statute of limitations for personal injury torts. See Elliott v. City of Union 13 City, 25 F.3d 800, 802 (9th Cir. 1994). California’s statute of limitations period for personal injury 14 torts is two years, and the statute of limitations period for § 1983 claims is two years. See 15 Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Cal. Civ. Proc. Code § 335.1; Elliott, 25 16 F.3d at 802. It is federal law, however, that determines when a cause of action accrues and the 17 statute of limitations begins to run in a § 1983 action. Wallace v. Kato, 549 U.S. 384, 388 (2007); 18 Elliott, 25 F.3d at 801-02. Under federal law, a claim generally accrues when the plaintiff knows 19 or has reason to know of the injury which is the basis of the action. See Elliott, 25 F.3d at 802. 20 Incarceration of the plaintiff is a disability that may toll the statute for a maximum of two 21 years, but only for a plaintiff who is in prison “for a term less than for life” and is under the disability 22 at the time the cause of action accrues. See Cal. Civ. Proc. Code § 352.1. The two years of tolling 23 for the disability of incarceration applies only to claims for damages and does not apply to claims 24 for injunctive or declaratory relief. See id. at § 352.1(c). 25 The limitations period may be subject to equitable tolling. Under California law, equitable 26 tolling “‘reliev[es] plaintiff from the bar of a limitations statute when, possessing several legal 27 remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries 1 v. California, 21 Cal. 3d 313, 317 (1978)). Thus, in an appropriate case, the statute of limitations 2 || might be tolled for time spent pursuing a remedy in another forum before filing the claim in federal 3 court. 4 Although the statute of limitations is an affirmative defense that normally may not be raised 5 by the court sua sponte, it may be grounds for sua sponte dismissal of an in forma pauperis complaint 6 || where the defense is complete and obvious from the face of the pleadings or the court’s own records. 7 See Franklin v. Murphy, 745 F.2d 1221, 1228-30 (9th Cir. 1984). That is the situation here: the 8 defense appears complete and obvious from the face of the complaint for events and omissions that 9 occurred in October 2008, almost twelve years before the complaint was filed in September 2020. 10 Preston must show cause why the action filed in September 2020 alleging an equal protection 11 violation that happened in October 2008 should not be dismissed as barred by the statute of 12 || limitations. He should provide his written response in a document labelled “Response to Order to 5 13 Show Cause Regarding Statute of Limitations Problem” or something similar. Of course, Preston 14 || is not limited to arguing only equitable tolling — he may submit any argument he has to show that 3 15 the statute of limitations does not bar his claim. His written response also must state whether he 16 || was in prison, jail, or at liberty in October 2008.
CONCLUSION 19 No later than March 5, 2021, plaintiff must file a written response explaining why this action 20 || is not barred by the statute of limitations. Failure to file the response by the deadline will result in 21 the dismissal of this action. 22 IT IS SO ORDERED. 23 || Dated: January 15, 2021 Sate WU tee 24 25 SUSAN ILLSTON United States District Judge 26 27 28