Tolbert v. Colley

• Court: District Court, N.D. California
• Decided: April 14, 2023
• Docket: 3:22-cv-02026
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOEL TOLBERT, Case No. 22-cv-02026-JSC

8 Plaintiff, ORDER GRANTING MOTION TO DISMISS AND LEAVE TO FILE 9 v. SECOND AMENDED COMPLAINT

10 ANTIOCH POLICE DEPARTMENT, et al., Re: Dkt. No. 26 Defendants. 11

12 INTRODUCTION 13 Plaintiff, a California prisoner proceeding without being represented by an attorney, 14 filed this civil rights complaint under 42 U.S.C. § 1983 against the Antioch Police 15 Department (“APD”), APD Chief Allen Cantando, APD Officer James Colley, APD 16 Officer James Perkinson, and the Contra Cost County Detention Health Service 17 (CCCDHS). Summonses issued to Defendants Cantando, Perkinson, and CCCDHS were 18 returned unexecuted. (ECF Nos. 13, 15, 16.) 19 Defendants1 APD and Colley move for judgment on the pleadings pursuant to Rule 20 12(c) of the Federal Rules of Civil Procedure (ECF No. 26), and for judicial notice of 21 certified court records (ECF No. 27). Plaintiff responded. (ECF No. 31.) Defendants 22 replied. (ECF No. 35.) For the reasons discussed below, the motion for judgment on the 23 pleadings is GRANTED WITH LEAVE TO AMEND. 24 BACKGROUND 25 Plaintiff filed this lawsuit on March 30, 2022. Plaintiff’s First Amended Complaint 26

27 1 Unless otherwise noted, the Court’s use of the term “Defendants” refers to the two 1 (FAC) alleges that on January 28, 2015, Defendant Colley and his colleague APD Officer 2 Perkinson shot Plaintiff with a bean bag, beat, cut, suffocated, and threatened to sexually 3 assault him while arresting him at his mother’s house despite his lack of resistance. (ECF 4 No. 8 at 3-42 ¶ 9.) Plaintiff alleges Defendant APD has a widespread practice of failing to 5 adequately train and supervise its officers resulting in instances of constitutionally- 6 prohibited excessive use of force by the officers. (Id. at 13-15 ¶ 20.) 7 Plaintiff’s FAC alleges further that after his arrest, he was treated at John Muir 8 Hospital where he underwent surgery. (Id. at 4-5.) Thereafter, he was taken to the 9 Martinez Detention Facility. (Id. at 18.) Plaintiff’s FAC does not otherwise address the 10 duration of his incarceration, or reasons for the lengthy delay in bringing this lawsuit. 11 Defendants argue Plaintiff’s claims are barred by the two-year statute of limitations 12 for Section 1983 claims in California. (ECF No. 26 at 5-6.) According to Defendants, 13 Plaintiff’s claims accrued on the date of the alleged excessive use of force, and he was 14 therefore required to bring his claims no later than January 28, 2017. (Id. at 6.) They 15 contend the statute of limitations bars both Plaintiff’s Fourth Amendment claim against 16 Defendant Colley, and his Monell claim against Defendant APD. (Id. at 6-7.) 17 Defendants further argue the two-year statute of limitations is not tolled by any 18 statutory provision or judicial doctrine for three reasons. First, California’s statutory 19 tolling provisions relating to persons who are imprisoned or under criminal prosecution do 20 not apply to Plaintiff’s circumstances. Second, California’s pandemic-related Emergency 21 Rule 9 is either inapplicable or already lapsed. (Id. at 8-9.) Third, Plaintiff’s claims are 22 not saved by the doctrine of equitable tolling. (Id. at 9-11.) 23 DISCUSSION 24 I. Standard of Review 25 Under Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed – but 26 early enough not to delay trial – a party may move for judgment on the pleadings.” 27 1 Judgment on the pleadings is proper when “taking all the allegations in the non-moving 2 party’s pleadings as true, the moving party is entitled to judgment as a matter of law.” 3 Ventress v. Japan Airlines, 486 F.3d 1111, 1114 (9th Cir. 2007) (internal quotation marks 4 and citation omitted). The Court must “accept the facts as pled by the nonmovant.” 5 United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1053 (9th 6 Cir. 2011). See also McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) 7 (“All allegations of fact by the party opposing the motion are accepted as true.”) (citation 8 omitted); Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist 9 Congregational Church, 887 F.2d 228, 230-31 (9th Cir. 1989) (considering defendants’ 10 answer on plaintiff’s motion for judgment on the pleadings); Qwest Commc’ns Corp. v. 11 City of Berkeley, 208 F.R.D. 288, 291 (N.D. Cal. 2002) (considering defendant’s answer 12 on plaintiff’s motion for judgment on the pleadings and stating that “[u]ncontested 13 allegations to which the other party had an opportunity to respond are taken as true”) 14 (citing Flora v. Home Fed’l Sav. & Loan Ass’n, 685 F.2d 209, 211 (7th Cir. 1982)). A 15 court need not, however, accept conclusory allegations as true. See McGlinchy, 845 F.2d 16 at 810. “Judgment on the pleadings is proper when the moving party clearly establishes on 17 the face of the pleadings that no material issue of fact remains to be resolved and that it is 18 entitled to judgment as a matter of law.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 19 Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). 20 A Rule 12(c) motion is “functionally identical” to a Rule 12(b)(6) motion, and 21 courts should apply the same standard. Dworkin v. Hustler Mag., Inc., 867 F.2d 1188, 22 1192 (9th Cir. 1989). In considering a Rule 12(c) motion, a court must limit its review to 23 “facts that are contained in materials of which the court may take judicial notice.” 24 Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18 (9th Cir. 1999) (internal 25 quotation marks and citations omitted). 26 Although Rule 12(c) makes no mention of leave to amend, courts have discretion to 27 do so. Carmen v. S. F. Unified Sch. Dist., 982 F. Supp. 1396, 1401 (N.D. Cal. 1997). 1 Ninth Circuit Court affirmed a district court’s dismissal under Rule 12(c) but reversed for 2 failing to grant leave to amend. Leave to amend should be granted even if not requested, 3 unless amendment would be futile. Cook, Perkiss and Liehe, Inc. v. Northern California 4 Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir. 1990) (the district court was correct 5 to analyze whether an amended pleading might state a claim, even though the plaintiff had 6 not filed a motion to amend; district court’s conclusion that leave to amend would be futile 7 was also correct). 8 A self-represented party’s pleading must be liberally construed and, “however 9 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 10 lawyers.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (quoting Estelle v. 11 Gamble, 429 U.S. 97, 106 (1976)). Because Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 12 incorporated the Twombly pleading standard and Twombly did not alter courts’ treatment 13 of self-represented parties’ filings, federal courts continue to construe such filings 14 liberally, especially where the self-represented plaintiff is a prisoner in a civil rights 15 matter. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 16 II. Analysis 17 1. Judicial Notice of Court Records 18 Federal Rule of Evidence 201(b) permits a court to notice an adjudicative fact if it is 19 “not subject to reasonable dispute.” Khoja v. Orexigen Therapeutics, 899 F.3d 988, 999 20 (9th Cir. 2018). Taking judicial notice of matters of public record does not convert a 21 motion to dismiss into a motion for summary judgment. Id. A district court “may take 22 notice of proceedings in other courts, both within and without the federal judicial system, 23 if those proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d 24 1212, 1225 (9th Cir. 2007) (internal quotation marks and citations omitted) (granting 25 request to take judicial notice in § 1983 action of five prior cases in which plaintiff was a 26 self-represented litigant, to counter her argument that she deserved special treatment 27 because of her status). 1 by Defendants. (ECF No. 27.) The certified court records establish a trial was conducted 2 in January 2019, and Plaintiff was sentenced on February 22, 2019. (Id.) 3 2. The FAC Establishes the Statute of Limitations Bar 4 Section 1983 does not contain its own limitations period. The appropriate period is 5 that of California’s statute of limitations for personal injury torts. See Wilson v. Garcia, 6 471 U.S. 261, 276 (1985); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). The 7 general residual statute of limitations for personal injury actions is the two-year period set 8 forth at California Civil Procedure Code § 335.1 and is the applicable statute in § 1983 9 actions. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). It is federal law, 10 however, that determines when a cause of action accrues and the statute of limitations 11 begins to run in a § 1983 action. McDonough v. Smith, 139 S. Ct. 2149, 2156 (2019). The 12 statute of limitations generally begins to run when a plaintiff has knowledge of the “critical 13 facts” of his injury, which are “that he has been hurt and who has inflicted the injury.” 14 United States v. Kubrick, 444 U.S. 111, 122 (1979). 15 Based solely on the pleadings, Plaintiff’s claims are barred by the two-year statute 16 of limitations for § 1983 claims. Plaintiff’s claims against the served Defendants 17 indisputably accrued on January 28, 2015, when he alleges he was assaulted. (ECF No. 8 18 at 3-4 ¶ 9; id. at 8-9 ¶ 18; id. at 13-15 ¶ 20) So, his complaint filed March 30, 2022, was 19 filed more than five years too late. 20 3. Tolling 21 A federal court must apply a state’s tolling provisions. See Hardin v. Straub, 490 22 U.S. 536, 543-44 (1989); Marks v. Parra, 785 F.2d 1419, 1419-20 (9th Cir. 1986). 23 Plaintiff’s FAC allegations do not state grounds for tolling the limitations period. Because 24 of Plaintiff’s self-represented status, the Court has analyzed the factual allegations and 25 submissions in Plaintiff’s response to Defendants’ Rule 12(c) motion that were not in 26 Plaintiff’s FAC to determine whether Plaintiff could allege grounds to toll the statute of 27 limitations if granted leave to file a second amended complaint. See Harris, 682 F.3d at 1 that an amendment could not cure the deficiency.” (citations omitted)). 2 a. Tolling during a Period of Imprisonment 3 California tolls the statute of limitations during imprisonment under certain 4 conditions. California Civil Procedure Code § 352.1 recognizes imprisonment as a 5 disability that tolls the statute of limitations when a person is “imprisoned on a criminal 6 charge, or in execution under the sentence of a criminal court for a term of less than for 7 life.” Cal. Civ. Proc. Code § 352.1(a). The tolling is not indefinite, however; the disability 8 of imprisonment delays the accrual of the cause of action for a maximum of two years. 9 See id.; Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999). The statute of limitations 10 begins to run immediately after the recognized disability period ends. See Cabrera v. City 11 of Huntington Park, 159 F.3d 374, 378-79 (9th Cir. 1998) (following California law). 12 Thus, an inmate has a maximum of four years to bring a § 1983 claim for damages in 13 California, i.e., the regular two year period under § 335.1 plus two years under § 352.1 14 during which accrual is postponed for the disability of imprisonment. If the statute of 15 limitations starts to run again because the prisoner is released, tolling will not be reinstated 16 by subsequent incarceration. See Boag v. Chief of Police, 669 F.2d 587, 589 (9th Cir. 17 1982) (tolling ends upon release on parole); Williams v. Coughlan, 244 F.2d 6, 8 (9th Cir. 18 1957) (statute of limitations not tolled after prisoner released). 19 Assuming Plaintiff could allege he was continuously incarcerated from January 28, 20 2015 (when Plaintiff’s claims accrued) to March 30, 2022 (when Plaintiff filed this 21 lawsuit), § 352.1 tolling would not make his lawsuit timely. The maximum allowed 22 duration of tolling would only extend the limitations period to January 28, 2019 – four 23 years after the date Defendant Colley allegedly assaulted Plaintiff. See Cal. Civ. Proc. 24 Code § 352.1(a); Fink, 192 F.3d at 916. Plaintiff’s insistence that the statute did not begin 25 to run until February 22, 2019 ignores that § 352.1 tolls the statute at most for two years. 26 Cal. Civ. Proc. Code § 352.1(a). Any subsequent incarceration would not further extend 27 the limitations period. See Boag, 669 F.2d at 589. So, leave to amend to attempt to allege 1 b. Tolling under Emergency Rule 9 2 Emergency Rule 9 (“ER 9”) was enacted by the Judicial Counsel of California to 3 extend the time for filing suit during the early days of the Covid-19 emergency. Cal. Rules 4 of Court, Appendix I: Emergency Rules Related to COVID-19, Emergency Rule 9. ER 9 5 tolled the statute of limitations for state law claims from April 6, 2020 until October 1, 6 2020 for statutes of limitations over 180 days. Id. ER 9 did not serve to revive lapsed 7 claims. Id. Assuming ER 9 applies to claims under § 1983, Plaintiff’s claims had already 8 lapsed before April 6, 2020. Therefore, ER 9 would not revive them. So, ER 9 does not 9 provide a basis to render a second amended complaint timely because it would not toll the 10 limitations period for Plaintiff’s claims through to March 30, 2022, either by its own 11 operation or combined application with § 352.1. 12 c. Equitable Tolling 13 California’s equitable tolling rules apply. Azer v Connell, 306 F.3d 930, 936 (9th 14 Cir. 2002). Plaintiff argues equitable tolling applies because he filed government tort 15 claims notices, some which were not responded to, and because police threatened him not 16 to file suit. (ECF No. 31 at 3-4 (alleged threat made by Defendant Perkinson); id. at 4-5 17 (tort claim notices); id. at 5 (alleged threat made by APD officer)). 18 Under California law, equitable tolling is appropriate in a later suit when an earlier 19 suit was filed and where the record shows: “‘(1) timely notice to the defendant in the first 20 claim; (2) lack of prejudice to the defendant in gathering evidence to defend against the 21 second claim; and (3) good faith and reasonable conduct by the plaintiff in filing the 22 second claim.’” Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1137-38 23 (9th Cir. 2001) (en banc) (citing Collier v. City of Pasadena, 142 Cal. App. 3d 917, 924 24 (1983)). Upon satisfying the three-pronged test, a plaintiff should be relieved from the 25 limitations bar. Id. at 1140; see, e.g., Azer, 306 F.3d at 936-37 (granting equitable tolling 26 where plaintiff satisfies three-prong test and finding that by filing an official-capacity 27 action in state court plaintiff provided individual defendants within state office adequate 1 As to the first prong of the equitable tolling standard, Plaintiff claims he gave 2 timely notice of his claims through his submission of three separate tort claim notices in 3 2015 and 2019, only one of which received a response. (ECF No. 31 at 4-5) Defendants 4 respond with several objections. First, Defendants argue the documentation Plaintiff 5 submitted is objectionable because Plaintiff did not provide copies of his actual notice 6 letters, nor any proof of service. (ECF No. 35 at 8-9.) Second, Defendants claim that none 7 of the submitted documents are dated within the statutory limitations period. (Id. at 9.) 8 Defendants’ arguments are unpersuasive. Plaintiff alleges that he gave notice to 9 Defendants through tort claim forms, and he admits he does not presently have records of 10 the tort claim forms he sent. The question is whether if given leave to amend, Plaintiff 11 could allege facts that would show a plausible basis for surviving a Rule 12(c) motion – if 12 so, Plaintiff will have the opportunity to locate and submit proof during discovery. Such 13 evidence regarding the first prong of the equitable tolling standard may also be relevant to 14 the second and third prongs. See Daviton, 241 F.3d at 1137-38. On the present record, the 15 Court cannot conclude that it is impossible for Plaintiff to sufficiently plead equitable 16 tolling. Harris, 682 F.3d at 1134-35. Leave to amend to allege equitable tolling will be 17 granted. 18 CONCLUSION 19 For the reasons stated above: 20 (1) Defendants’ motion to dismiss (ECF No. 26) is GRANTED with leave to 21 amend to attempt to allege a basis for equitable tolling. Plaintiff is not granted leave to add 22 any new claims or defendants. 23 // 24 // 25 //

26 27 1 (2) Plaintiff shall file any second amended complaint on or before June 2, 2023, and 2 || his failure to do so will result in the dismissal of this case; and 3 (3) This Order disposes of ECF No. 26. 4 IT IS SO ORDERED. etd 5 || Dated: April 14, 2023 ne 6 ACQUELINE SCOTT CORLEY United States District Judge 7 8 9 10 11 a 12

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