Allen v. Virga
| Decision Date | 11 June 2013 |
| Docket Number | No. 2:12-cv-1583 AC P,2:12-cv-1583 AC P |
| Parties | KEVIN ALLEN, Plaintiff, v. T. VIRGA, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Plaintiff is a California inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff, who describes himself as "a follower of Yahweh," alleges that defendants Virga and Korik, respectively the warden and the Jewish chaplain at CSP-Sac, violated his First Amendment religious rights by denying him a kosher diet. He seeks declaratory and injunctive relief as well as nominal and punitive damages. Pending before the court are fully-briefed motions to dismiss by defendant Virga (ECF No. 14) and defendant Korik (ECF No. 22). Both motions assert the statute of limitations and qualified immunity. Defendant Virga also contends that plaintiff has failed to state a claim against him.
Both defendants contend that this action is untimely under California's two-year statute of limitations for personal injury actions, and that plaintiff is not entitled to California's two-year tolling provision for prisoners because he is sentenced to a term of life with the possibility of parole.
Actions brought pursuant to 42 U.S.C. § 1983 are governed by the forum state's statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 265 (1985); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). In California, a two-year statute of limitations applies. See Cal. Code Civ. P. § 335.1; Jones, 393 F.3d at 927. The federal court also apples the forum state's law regarding tolling, including equitable tolling when not in conflict with federal law. Hardin v. Straub, 490 U.S. 536, 537-39 (1989); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999), cert. denied, 529 U.S. 1117 (2000). California provides that the applicable limitations period is tolled for two years on grounds of "disability" when a litigant is incarcerated. Cal. Code Civ. P. § 352.1(a). This tolling provision operates to delay the running of the limitations period. Carlson v. Blatt, 87 Cal. App. 4th 646, 650 (2001) (); Fink, 192 F.3d at 914 (same); Ellis v. City of San Diego, 176 F.3d 1183, 1189 (9th Cir. 1999) (same).
Each defendant argues separately that plaintiff is not entitled to the two-year prisoner litigant tolling provision because plaintiff is a state prisoner sentenced to a life term with the possibility of parole. Prior to 1995, most California prisoners were entitled to tolling for the entire term of their imprisonment. See Grasso v. McDonough Power Equipment, Inc., 264 Cal. App. 2d 597 (1968)); see also Ellis, 176 F.3d at 1189 (). However, enactment of Cal. Code Civ. P. § 352.1(a) limited the period of tolling to two years. Johnson v. State of California, 207 F.3d 650, 654 (9th Cir. 2000); Ellis, 176 F.3d at 1189. "The California courts have read out of the statute the qualification that the period of incarceration must be 'for a term less than for life' inorder for a prisoner to qualify for tolling." Jones, 393 F.3d at 927 n. 5 (). Accordingly, plaintiff is correct that he was entitled to the two-year tolling provision § 352.1. Hence, plaintiff had four years from the date of accrual of the cause of action to file his complaint.
Federal law governs when a cause of action accrues in the § 1983 context. Cabrera v. City of Huntington Park, 159 F.3d 374, 379 (9th Cir. 1998). A § 1983 claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. Knox v. Davis, 260 F.3d 1009, 1012-13 (9th Cir. 2001). In his complaint dated June 11, 2012 (and docketed in this court on June 13, 2012),1 plaintiff complains that defendants denied him a kosher diet at CSP-Sac. The allegations do not include relevant dates, but plaintiff attached and incorporated by reference his administrative appeal of the diet issue. See ECF No. 1 at 2-3, 7-16. The inmate appeal form is dated December 9, 2010 and claims that it is the fifth such appeal of the matter. Alleged non-responsiveness to plaintiff's prior appeals and requests to meet with the Jewish chaplain are part of the substance of the grievance. In his appeal plaintiff explains that he had been appealing the kosher diet issue at Corcoran State Prison before his transfer to CSP-Sac, and implies that the problem was ongoing since his arrival at CSP-Sac. Id. at 9-10. Defendant Korik provides and requests judicial notice of plaintiff's CDCR movement history, which establishes that plaintiff was transferred from Corcoran to CSC-Sac on September 29, 2009.2 Accordingly, the claims cannot have accrued prior to that date.
Because the claims against these defendants necessarily accrued after plaintiff's September 29, 2009 arrival at CSP-Sac, and the complaint was filed less than three years thereafter, the complaint is not untimely.
Moreover, plaintiff is entitled to equitable tolling for the time he was exhausting his administrative remedies. See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005). Plaintiff's inmate appeal was submitted on December 9, 2010 and denied at the final, Director's Level on June 16, 2011. ECF No. 1 at 7, 15. Even if plaintiff's two-year period of tolling under § 352.1(a) expired during the pendency of his inmate appeal, the time until the appeal was decided at the Director's Level would also be excluded from the limitations period. Plaintiff filed his complaint less than one year after exhausting his administrative remedies. The complaint is therefore timely.
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factualmatter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 828 F.2d 1385, 1388 (9th Cir.1987), and matters of public record including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
The complaint alleges that defendant Virga ECF No. 1 at 2. The complaint specifies that "each defendant is being sued in their individual capacities. . . " Id. In a brief paragraph captioned "Facts," plaintiff alleges that "the Defendants continuously ignored plaintiff's requests, and later denied plaintiff the right to a religious meal according to 'Jewish Kosher Diet,' the closest, and proper meals per plaintiff's religious beliefs." Id. at 3.
The exhibits indicate that plaintiff claimed in his inmate appeal to have sent two requests to the warden concerning the rabbi and "the appeals person," regarding his appeals of the religious diet matter not being addressed. ECF No. 1 at 9. At the second level of review, Virga reviewed the appeal and designated a correctional counselor to conduct an inquiry on his behalf. Id. at 13.
As defendant Virga points out, the complaint purports to proceed against him only in an individual capacity but references him largely in an official capacity context. Because plaintiff is a pro se litigant, his filings are to be "liberally construed" and "held to less stringent...
To continue reading
Request your trial