Baker v. German
| Decision Date | 03 January 2018 |
| Docket Number | Case No. 1:16-cv-01873-AWI-SAB (PC) |
| Parties | DOMINIQUE D. BAKER, Plaintiff, v. HUMBERTO GERMAN, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION TO DISMISS
Plaintiff Dominique Baker is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Defendants' motion to dismiss, filed on December 1, 2017.
This action is proceeding against Defendants Humberto German and Phillip Holguin for excessive force in violation of the Eighth Amendment.
On December 1, 2017, Defendants filed a motion to dismiss the action as barred by the statute of limitations and for failure to exhaust the administrative remedies. (ECF No. 39.) On this same date, Defendants also filed a request for judicial notice. (ECF No. 38.) Plaintiff filed an opposition on December 14, 2017, and Defendants filed a reply on December 21, 2017. (ECF Nos. 41, 42.)
On December 11, 2017, Plaintiff filed a motion for summary judgment on the merits of his claims. (ECF No. 40.) On December 26, 2017, Defendants filed a request to staying the filing of the filing of an opposition to Plaintiff's motion for summary judgment until a ruling on the motion to dismiss is issued. (ECF No. 43.)
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw all reasonable inferences in favor of the non-moving party, Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit, pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
On April 23, 2011, at 9:00 a.m., Plaintiff was inside his assigned cell at Corcoran State Prison. Officers Humberto German and Phillip Holguin approached Plaintiff's cell and ordered him to be"handcuffed" and escorted Plaintiff to the building holding cage. Plaintiff underwent an unclothed body search and was then handcuffed and escorted to the holding case. After being uncuffed, Plaintiff exchanged words with Defendants German and Holguin. Defendant Humberto German removed his state issued pepper spray canister and began spraying Plaintiff in the face and torso. Plaintiff went into shock and was not able to see and breathe. Plaintiff then heard Defendant Humberto German order Phillip Holguin to pepper spray the Plaintiff. Both Defendants pepper sprayed Plaintiff until the canisters were empty.
Defendants request the Court take judicial notice of the following documents from the case of People v. Dominique Baker (Cal. Super. Ct. No. 11CM7514, filed Sept. 8, 2011): 1) Exhibit A is a true and correct copy of the "Declaration for Release and Transportation of Prison and Order," dated September 20, 2011; 2) Exhibit B is a true and correct copy of a Minute Order, dated September 29, 2011; 3) Exhibit C is a true and correct copy of the Information, dated November 7, 2011; 4) Exhibit D is a true and correct copy of the "State Inmate Prison Report" (i.e. probation officers' report), dated July 11, 2012; 5) Exhibit E is a true and correct copy of a Minute Order, dated July 25, 2012; 6) Exhibit F is a true and correct copy of the "Abstract of Judgment - Prison Commitment - Indeterminate" (Judicial Council Form CR-292), endorsed by Kings County on July 26, 2012. (Exs A-F, at RJN.001-027, ECF No. 38.)
Federal Rule of Evidence 201 permits the Court to take judicial notice at any time. A judicially noticed fact must be one not subject to reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resort to sources who accuracy reasonably cannot be questioned. Fed. R. Evid. 201(b). Courts may take judicial notice of facts related to the case before it. Amphibious Partners, LLC v. Redman, 534 F.3d 1357, 1361-1362 (10th Cir. 2008) (). This Court may judicially notice the records and filing of other court proceedings. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Bennett v. Medtronic, Inc., 285 F.3d 801, 802n.2 (9th Cir. 2002). This includes documents filed in state courts. Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012).
The Court takes judicial notice of the Exhibits A through F by Defendant as such documents are appropriate for judicial notice. (Exs A-F, at RJN.001-027, ECF No. 38.)
Federal law determines when a claim accrues, and "[u]nder federal law, a claim accrues when the plaintiff knows or should know of the injury that is the basis of the cause of action." Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (citation omitted); Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Because section 1983 contains no specific statute of limitations, federal courts should apply the forum state's statute of limitations for personal injury actions. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Maldonado, 370 F.3d at 954; Fink, 192 F.3d at 914. California's statute of limitations for personal injury actions was extended to two years effective January 1, 2003. Cal. Civ. Proc. Code § 335.1; Jones, 393 F.3d at 927; Maldonado, 370 F.3d at 954-55.
In actions where the federal court borrows the state statute of limitations, courts should also borrow all applicable provisions for tolling the limitations period found in state law. Jones, 393 F.3d at 927. California's equitable tolling statute applies to both prisoners and civil detainees. Id. Section 352.1 of the California Code of Civil procedure allows for the tolling of the statute of limitations during a period of "disability" while the plaintiff is in state prison, and the tolling may not exceed two years. Accordingly, the statute of limitations in this case would be tolled for no more than two years. Moreno v. Thomas, 490 F.Supp.2d 1055, 1061 (C.D. Cal. 2007). For purposes of the tolling provision, "the term 'insane' has been defined as a condition of mental derangement which renders the sufferer incapable of caring for his property or transacting business, or understanding the nature or effects of his acts." Hsu v. Mt. Zion Hospital, 259 Cal.App.2d 562, 571 (1968).
Here, Plaintiff's claim accrued on April 23, 2011-the date of the incident. Plaintiff therefore had four years from April 23, 2011, to file his action, i.e. April 23, 2015. However, Plaintiff did not file the instant action until December 15, 2016-one year and seven months after the statute of limitations expired on April 23, 2015.
In opposition, Plaintiff argues that the statute of limitations began on April 18, 2016, the date after Plaintiff's earliest possible release date. Plaintiff is incorrect. Plaintiff cannot invoke tolling of the limitations period based on his belief that he was going to be released on a certain date but was not. See TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (); Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996). Here, Plaintiff is proceeding on an Eighth Amendment claim for excessive force, therefore his claim accrued on April 23, 2011-the date Defendants alleged used excessive force on him.1
California Government Code section 945.3 prevents the criminally accused from suing peace officers, in state court, for conduct related to the offense for which they have been charged while charges are pending. Cal. Gov't Code § 945.3. This section contains a built-in tolling provision that automatically tolls the statute of limitations while the charges are pending. Id. Although section 945.3's claim-bar provision does not apply in federal court, its tolling provision can. Harding v. Galceran, 889 F.2d 906, 909 (9th Cir. 1989). "Under section 945.3, 'criminal charges are "pending" until the date of judgment." Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (citing McAlpine v. Superior Court, 209 Cal.App.3d 1, 3 (1989)).
Here, criminal charges were filed against Plaintiff on or about September 8, 2011 for battery on a non-confined person (Cal. Pen. Code § 4501.5). (Defs.' Req. Jud. Not., Ex. A at RJN.002; Ex. B at RJN.006.) Plaintiff was charged of committing a battery on "Officer German" on April 23, 2011....
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