McClain v. Brosowske
| Decision Date | 20 April 2018 |
| Docket Number | Case No. EDCV 17-2377 MWF (SS) |
| Court | U.S. District Court — Central District of California |
| Parties | JEREMY EARL McCLAIN, Plaintiff, v. RYAN WILLIAM BROSOWSKE, et al., Defendants. |
Plaintiff Jeremy Earl McClain ("Plaintiff"), a state prisoner proceeding pro se, constructively filed a civil rights complaint on November 1, 2017 pursuant to 42 U.S.C. § 1983.1 ("Compl.," Dkt.No. 1). The Court granted Plaintiff's application to proceed in forma pauperis on December 4, 2017. ("IFP Order," Dkt. No. 4). On April 4, 2018, the Court received Plaintiff's payment of the initial partial filing fee required by the IFP Order.
Congress mandates that district courts perform an initial screening of complaints in civil actions where a prisoner seeks redress from a governmental entity or employee. 28 U.S.C. § 1915A(a). This Court may dismiss such a complaint, or any portion thereof, before service of process if the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1-2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc). For the reasons stated below, the Complaint is DISMISSED with leave to amend.2
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Plaintiff sues four employees of the San Bernardino County Sheriff's Department ("SBCSD"): (1) Deputy Ryan William Brosowske, (2) Detective Paul Solorio, (3) Sergeant Brett Zour, and (4) John Doe #1. (Compl. at 3-4 (continuous pagination)). All Defendants are sued in both their individual and official capacities. (Id.).
Plaintiff alleges that following his arrest on November 17, 2014, he was riding in the back of a police car driven by Deputy Brosowske. (Id. at 5, 7). Plaintiff was not secured by a seat belt. (Id. at 6). Because Brosowske was not paying attention to traffic, he rear-ended a civilian's car that was stopped at a red light. (Id. at 8).
Plaintiff suffered injuries to his neck and back in the accident. (Id. at 7). He asked Brosowske to take him to the hospital, but Brosowske refused. (Id. at 8). Instead, Brosowske threatened Plaintiff, stating, "If you try that shit, I'll fuck you off!" (Id. at 8). Broswoske drove away from the scene of the accident without giving his name or contact information to the driver of the car he hit. (Id. at 5).
Brosowske took Plaintiff to the High Desert Detention Center, where the intake deputy, John Doe #1, had the same "call[o]us and malicious" attitude as Brosowske. (Id. at 8). Both Doe #1 and Brosowske denied Plaintiff "any opportunity to be evaluated &treated for injuries [he] received" as a consequence of the accident. (Id.).
Detective Paul Solorio interviewed Plaintiff several hours later. (Id. at 9). Plaintiff described the accident in detail to Solorio and told him that Brosowske had threatened his life when he asked for medical attention. (Id.). Plaintiff also told Solorio that he was in "extreme pain" but still had not received any treatment, and "begged" him for medical assistance. (Id.). Solorio said "sure," but "left [Plaintiff] there unchecked [and] untreated for injuries received . . . ." (Id.).
That same day, Solorio assigned an officer to conduct an investigation into the accident. (Id. at 13). The officer conducted interviews on the evening of the accident and wrote a report of his findings dated the next day, November 18, 2014. (Id.). Sergeant Brett Zour reviewed the officer's report on December 1, 2014. (Id.). However, Zour "failed to identify" that Brosowske had breached protocol by failing to offer Plaintiff an opportunity to receive basic medical attention. (Id. at 11). Zour also "failed to identify" that Plaintiff had told Solorio in his interview that he was injured. (Id.).
Plaintiff was released from police custody at 6:00 a.m. on November 18, 2014. (Id. at 10). Although he had been in custody for approximately twelve hours, he was not examined or treated for his injuries at any point prior to his release. (Id.).
Medical records dated November 18, 2014 attached to the Complaint reflect that on the same day Plaintiff was released, he went to the emergency room at Victor Valley Global Medical Center at 4:00 p.m. complaining of pain to his neck and back. (Id. at 26). He was discharged at 6:50 p.m. with after care instructions that stated, in part, that although he had been diagnosed with strains to his neck and thoracic spine muscles, the attending physician did not find any pain over the bones in those areas, making it "very unlikely that [Plaintiff] had" a fracture in his neck or a broken bone in his spine. (Id. at 27). The instructions further noted that the physician did not consider it necessary to take an x-ray. (Id.). The instructions directed Plaintiff to apply a warm damp washcloth or towel to his neck and back to reduce any pain. (Id. at 27-28).
Plaintiff alleges that since the accident, he has been "in constant fear for [his] safety, for [his] life," and states that preparing the instant Complaint has been "wearing [him] down," both "emotionally, psychologically and physically." (Id. at 10). Plaintiff alleges that he continues "to suffer pain(s) and fears even to this day" as a result of the accident. (Id.).
Plaintiff claims that all four Defendants are liable for deliberate indifference to his serious medical needs. (Id. at 3-4). In addition, he alleges that: Solorio, Zour and Doe #1 violated his equal protection rights; Brosowske, Solorio and Zour conspired to deprive him of due process; Brosowske "made threats against [his] life"; and Solorio "falsified [the] police report."(Id.). Plaintiff seeks monetary damages of $2,750,000 from Brosowske, $1,500,000 from Solorio, and $1,000,000 each from Zour and Doe #1. (Id. at 12). In addition, Plaintiff demands the following relief: (1) admission into a federal witness protection program; (2) full discharge from state and county probation and parole requirements; (3) relocation outside the state of California and housing; (4) vocational training; (5) "full medical coverage for life" and (6) removal of Brosowske from any position that brings him in contact with the public. (Id.).
Under 28 U.S.C. § 1915A(b), the Court must dismiss the FAC due to pleading defects. However, the Court must grant a pro se litigant leave to amend his defective complaint unless "it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation and internal quotation marks omitted). For the reasons discussed below, it is not "absolutely clear" that at least some of the Complaint's defects could not be cured by amendment. The Complaint is therefore DISMISSED with leave to amend.
"The applicable statute of limitations for actions brought pursuant to 42 U.S.C. § 1983 is the forum state's statute oflimitations for personal injury actions." Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 828 (9th Cir. 2003). Effective January 1, 2003, the statute of limitations for personal injury actions in California is two years. Cal. Code Civ. Proc. § 335.1. However, while state law determines the statute of limitations for § 1983 claims, "federal law determines when a civil rights claim accrues.'" Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002) (quoting Morales v. City of Los Angeles, 214 F.3d 1151, 1153-54 (9th Cir. 2000)). Under 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); Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004).
When a federal court borrows the state statute of limitations, it also borrows the state's tolling rules. Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007). This applies to both statutory and equitable tolling. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) ().
California Civil Procedure Code § 352.1(a) provides that when a plaintiff is "imprisoned on a criminal charge" for "a term less than life" at the time a claim accrues, the statute of limitations is statutorily tolled during the time of his imprisonment for upto two more years. See Cal. Civ. Proc. Code § 352.1(a); see also Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999) (citing same). The California Court of Appeal has held as a matter of first impression in a very recent decision that "a would-be plaintiff is 'imprisoned on a criminal charge' within the meaning of section 352.1 [only] if he or she is serving a term of imprisonment in the state prison." Austin v. Medicis, ___Cal. Rptr.___, 2018 WL 1407120, at *11 (Cal. Ct. App. Mar. 21, 2018). Accordingly, the Austin court found that an arrestee who was in pretrial custody in a county jail at the time his claims accrued was not "imprisoned on a criminal charge" for purposes of § 352.1 and the statute's automatic tolling provisions did not apply. Id.; see also Groce v. Claudat, 603 F. App'x 581, 582 (9th Cir. 2015) ().
Whether or not a plaintiff is entitled to the automatic tolling provisions of § 352.1, equitable tolling may still extend the running of the statute of limitations. "Equitable tolling under California law 'operates independently of the literal wording of the Code of Civil Procedure to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.'" Jones, 393 F.3d...
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