Mullens v. City of Lakewood, Case No. 3:15-cv-05442-BHS-KLS
| Decision Date | 09 August 2016 |
| Docket Number | Case No. 3:15-cv-05442-BHS-KLS |
| Court | U.S. District Court — Western District of Washington |
| Parties | JOSHUA JAMES MULLENS, Plaintiff, v. CITY OF LAKEWOOD, AARON GRANT, ANDREW GILDEHAUS, MARK B. HOLTHAUS, Defendants. |
This matter is before the Court on defendants' motion to dismiss for failure to properly commence this case within the applicable status of limitations.1 This matter has been referred to the undersigned Magistrate Judge.2 For the reasons set forth below, the undersigned recommends that the Court deny defendants' motion.
On June 29, 2015, plaintiff, a Washington state prisoner, filed an application to proceed in forma pauperis along with a civil rights complaint under 42 U.S.C. § 1983.3 In his complaint, plaintiff alleged that on July 23, 2012, he was tased nine times in the back and once in the neck,and that he ended up in the hospital.4 On July 1, 2015, the undersigned granted plaintiff's in forma pauperis application and accepted his complaint, but directed him to file an amended complaint by July 31, 2015, to correct certain deficiencies in his original complaint.5
Because plaintiff did not file an amended complaint as directed, on August 6, 2015, the undersigned recommended that the Court dismiss his complaint.6 But because plaintiff provided several reasons for failing to do so in objecting to the recommendation, on September 28, 2015, the Court declined to dismiss the complaint.7 Upon re-referral of the case, the undersigned gave plaintiff an extension of time, until October 30, 2015, to file an amended complaint, which he did on October 29, 2015.8 On October 30, 2015, the undersigned directed service of that complaint.9
On November 12, 2015, defendants filed their motion to dismiss.10 They asserted that under Washington's three-year statute of limitations - which requires the complaint to be served on at least one of the defendants within 90 days of filing the complaint if service has not been completed prior to such filing11 - plaintiff had until September 28, 2015 to serve his complaint, but failed to do so. Thus, defendants argued, plaintiff's complaint should be dismissed for failure to perfect service before the statute of limitations had run.
On December 21, 2015, the undersigned recommended that the Court deny defendants' motion, finding plaintiff timely commenced his lawsuit when he filed his original complaint onJune 29, 2015.12 Specifically, while acknowledging the service requirements of RCW 4.16.170, the undersigned noted federal courts had a duty to ensure that borrowing state law would not frustrate or interfere with federal policy, and are obligated to screen civil rights complaints filed by prisoners prior to directing service. The undersigned pointed out that where delay in screening the complaint consumes the 120-day period for service under the federal rules of civil procedure, the time for service is suspended until the Court orders service. Thus, although defendants were not served within the 120-day period, this was due to delays in screening, and therefore the time for service was extended by implication.
On February 10, 2016, the Court declined to adopt the undersigned's recommendation, agreeing instead with defendants that state substantive law, rather than the federal rules of civil procedure, controlled as to statute of limitation and tolling rules.13 The Court though found this did not resolve the issue of whether plaintiff's claims were barred by the statute of limitations, as plaintiff had come forth with facts to support a finding of diligence on his part and thus a possible determination that equitable tolling may be appropriate. But because the Court had insufficient information to make a factual determination as to diligence, it re-referred the matter to the undersigned for further briefing and consideration of the issue of tolling.
On March 11, 2016, pursuant to the re-referral order the undersigned directed the parties to submit additional briefing.14 On March 24, 2016, plaintiff moved for reconsideration of that order, arguing that in light of the Ninth Circuit's holding in S.J. v. Issaquah Sch. Dist. No. 411,15 the time limits for service set forth in RCW 4.16.170 cannot be borrowed, that only the servicerequirements of Federal Rule of Civil Procedure (Fed. R. Civ. P.) 4(m) apply, and therefore that his complaint was timely filed as the undersigned found.16 On April 1, 2016, the Court denied plaintiff's motion, finding that even though S.J. appeared to be controlling, the undersigned did not recommend denial of defendants' motion to dismiss on this basis.17 Instead, the Court determined it was more appropriate to have the parties fully brief the motion to dismiss by going ahead and filing both a response and reply thereto.
On May 12, 2016, the undersigned granted the parties stipulated motion that the statute of limitations issue should be briefed first, since if that issue is resolved in plaintiff's favor then the equitable tolling issue becomes moot.18 As the parties have now briefed the statute of limitations issue, that issue is ripe for consideration. For the reasons set forth below, the undersigned agrees with plaintiff that the service requirements of Fed. R. Civ. P. 4(m) instead of RCW 4.16.170 apply, that plaintiff complied with those requirements, and that plaintiff timely commenced this action within the applicable statute of limitations. Accordingly, the undersigned recommends the Court deny plaintiff's motion to dismiss.
The Court's review of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is limited to the complaint.19 All material factual allegations in the complaint "are taken as admitted," and the complaint is to be liberally "construed in the light most favorable" to the plaintiff.20 A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set offacts in support of his claim which would entitle him to relief."21 Dismissal may be based on "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."22 "A statute of limitations defense, while not normally part of a motion under Fed. R. Civ. P. 12(b)(6), is appropriate where 'the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations.'"23
"Section 1983 does not contain its own statute of limitations."24 "Without a federal limitations period, the federal courts apply the forum state's statute of limitations for personal injury actions, along with the forum state's law regarding tolling, including equitable tolling, except to the extent any of these laws is inconsistent with federal law."25 "But, in borrowing a state statute of limitations for a federal cause of action," federal courts are "to 'borrow no more than necessary.'"26 For Section 1983 cases, "the appropriate period is that of the forum state's statute of limitations for personal injury torts."27 The limitations period for personal injury torts in Washington is three years.28
"Although [state] law determines the length of the limitations period, federal lawdetermines when a civil rights claim accrues."29 "Accrual is the date on which the statute of limitations begins to run; under federal law, a claim accrues 'when the plaintiff knows or has reason to know of the injury which is the basis of the action.'"30 Plaintiff alleges his injuries occurred on July 23, 2012. His cause of action thus began to accrue as of that date, triggering the three-year statute of limitations, which ran until July 23, 2015.
Plaintiff filed his application to proceed in forma pauperis and his original complaint in this Court on June 29, 2015. Defendants point out that "Washington courts have repeatedly held that the filing of a complaint does not constitute the commencement of an action for purposes of tolling the statute of limitations," and that RCW 4.16.170 requires the plaintiff to serve at least one of the defendants "within ninety days from the date of filing" for the commencement to be complete.31 Defendants argue, therefore, that to properly commence his cause of action by July 23, 2015, plaintiff had to serve one of the defendants by September 28, 2015, but because this did not occur, his claims are barred.
Under Fed. R. Civ. P. 3, "[a] civil action is commenced by filing a complaint with the court." Further, prior to 2016, Fed. R. Civ. P. 4(m) mandated that service be effected within 120 days of filing the complaint. Defendants argue:
In support of this argument, defendants rely on Torre v. Brickey.33 In that case, the Ninth Circuit found "no conflict" between Fed. R. Civ. P. 4(m) and an analogous Oregon law - which required service within 60 days of the filing of the complaint -in order for the cause of action to be deemed commenced.34 The Court of Appeals explained:
There is no...
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