Wisenbaker v. Farwell

• Decision Date: 29 September 2004
• Docket Number: No. CVN030500LRHVPC.,CVN030500LRHVPC.
• Citation: 341 F.Supp.2d 1160
• Parties: Larry M. WISENBAKER, Plaintiff, v. Craig FARWELL, et al., Defendants.
• Court: U.S. District Court — District of Nevada

341 F.Supp.2d 1160

Larry M. WISENBAKER, Plaintiff, v. Craig FARWELL, et al., Defendants.

No. CVN030500LRHVPC.

United States District Court, D. Nevada.

September 29, 2004.

COPYRIGHT MATERIAL OMITTED

Brian Morris, Brian R. Morris, Reno, NV, for Plaintiff.

Daniel Wong, Nevada Attorney General's Office, Carson City, NV, for Defendants.

ORDER

HICKS, District Judge.

Currently before the Court is Defendants' Motion to Dismiss (Docket No. 8). Plaintiff filed an Opposition (Docket No. 12), and Defendants filed a Reply (Docket No. 13). Having reviewed the record and researched the applicable law, the Court determines that Defendants' Motion to Dismiss will be denied.

I. FACTUAL AND PROCEDURAL HISTORY

Larry M. Wisenbaker ("Plaintiff") is currently incarcerated by the Nevada Department of Corrections ("NDOC") in Lovelock, Nevada. The following parties are defendants in this action: Craig Farwell, Jackie Crawford, and the NDOC (collectively, "Defendants"). Mr. Farwell is a Warden for the NDOC, and Jackie Crawford is its Director.

In considering Defendants' motion to dismiss, the Court views the facts in the light most favorable to the non-moving party. Wyler Summit P'Ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir.1998). Plaintiff alleges the following facts: On January 3, 2001, while Plaintiff was in his cell, he was attacked and stabbed multiple times by another inmate, leading to Plaintiff's suffering permanent injuries. After the attacker left, Plaintiff remained locked in his cell, and, although he requested medical help, those requests were ignored by one or more unknown correctional officers. The attacker was later allowed to reenter Plaintiff's cell and attack Plaintiff once more. He did not receive medical attention until a new set of guards came on duty. Plaintiff has brought a cause of action pursuant to 42 U.S.C. § 1983, claiming that the acts and omissions of the prison staff during this occurrence violated his civil rights.

As a result of his injuries and the alleged misconduct by prison employees, on November 26, 2002, Plaintiff filed a grievance pursuant to NDOC's Administrative Regulation 740. Nev. Dep't of Corrections, Admin. Reg. No. 740 [hereinafter A.R.]. He exhausted his administrative remedies on March 25, 2003. On December 16, 2002, while he was still pursuing his administrative remedies, Plaintiff, acting pro se, filed duplicate § 1983 claims in state and federal court. Defendants removed the state action to federal court, and the duplicative federal case was voluntarily dismissed. On August 16, 2003, the court dismissed without prejudice Plaintiff's original claim on the grounds that he had failed to exhaust his administrative remedies before filing the initial judicial action as required by 42 U.S.C. § 1997e. On September 11, 2003, Plaintiff filed the present action, which is apparently based on the same cause of action and circumstances as the previously dismissed lawsuit.

The current dispute between the parties revolves around whether Plaintiff's action should be barred by the statute of limitations. In dealing with the statute of limitations issue, the Court also faces the topic of equitable tolling.

II. LEGAL STANDARD

Defendants' motion seeks dismissal pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6), for failure to state a claim. A dismissal for failure to state a claim is essentially a ruling on a question of law. North Star International v. Arizona Corp. Comm., 720 F.2d 578 (9th Cir.1983). In considering "a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party." Wyler Summit P'Ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir.1998) (citation omitted). However, a court does not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations in a plaintiff's complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994). In considering this motion to dismiss, the Court asks only whether the pleadings are sufficient to establish a claim, not whether the plaintiff could find evidence to support his pleadings. See, e.g., In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1547 (9th Cir.1994).

The court also notes that the equitable tolling doctrine often depends on matters outside the pleadings; consequently, it is not generally amenable to resolution on a Rule 12(b)(6) motion. Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir.1995) (quoting Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir.1993)). Similarly, when a motion to dismiss is brought on the ground that the Plaintiff's complaint is untimely, "a complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim." Id. at 1207 (citing Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980)). See also Hernandez v. City of El Monte, 138 F.3d 393, 402 (9th Cir.1998).

Lastly, this Court notes that "the public policy favoring disposition of cases on their merits counsels strongly against dismissals. This policy favoring resolution on the merits `is particularly important in civil rights cases.'" Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir.1998) (quoting Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.1987)).

III. DISCUSSION

Defendants argue that Plaintiff's complaint should be dismissed because (1) it was submitted after the expiration of the applicable statute of limitations and (2) because Plaintiff failed to comply with Nev.Rev.Stat. 209.243. The Court will address each argument in turn.

A. The Statute of Limitations

42 U.S.C. § 1983 does not contain a statute of limitations. Rather, federal courts apply the forum state's personal injury statute of limitations for § 1983 claims. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In Nevada, the applicable statute of limitations is two years. See Nev.Rev.Stat. 11.190(4)(e); Perez v. Seevers, 869 F.2d 425 (9th Cir.1989). Federal courts also apply a forum state's law regarding tolling, including equitable tolling, when not inconsistent with federal law. See Hardin v. Straub, 490 U.S. 536, 537-39, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989); Fink v. Shedler, 192 F.3d 911, 913-14 (9th Cir.1999). However, federal law determines when a claim accrues for a § 1983 action. See Elliott v. City of Union City, 25 F.3d 800, 801-02 (9th Cir.1994). A claim accrues when the plaintiff knows, or should know, of the injury on which the cause of action is based. See Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.1996).

Defendants argue that Plaintiff is barred from bringing the current action because the applicable statute of limitations has run. Plaintiff contends the statute of limitations should be equitably tolled for (1) the period of time in which the Plaintiff was exhausting his administrative remedies, and (2) for the time period in which the dismissed case was pending before the court.

Plaintiff alleges that the acts which violated his civil rights occurred on January 3, 2001. Given that the applicable statute of limitations in Nevada is two years, Perez, 869 F.2d at 425, Plaintiff would ordinarily have had until January 4, 2003 to file a claim based on that attack. However, Plaintiff did not bring this lawsuit until September 11, 2004, some 250 days after the two-year statutory deadline. Therefore, Plaintiff's action can only proceed if there is some basis upon which it is appropriate for the Court to toll the statute of limitations for at least 250 days. Otherwise, Plaintiff's complaint will be considered to have been untimely filed. As there is no statutory rule permitting tolling which would apply to Plaintiff's claim, the Court considers whether the doctrine of equitable tolling might apply to save Plaintiff's claim.

Plaintiff initiated the prison grievance process on November 26, 2002, and he exhausted his administrative remedies on March 25, 2003, meaning the process took 119 days. While Plaintiff was still exhausting his administrative remedies, he filed a § 1983 claim in federal district court. That court dismissed Plaintiff's claim without prejudice on August 16, 2003. The case was pending before the court for 221 days. The total time from the filing of the administrative grievance to the judgment by the federal court was 289 days. Thus, the only way in which Plaintiff's action could be considered timely filed is if this Court tolls the statute of limitations for the pendency of both the administrative grievance process and the prior judicial action.

In deciding whether to equitably toll a statute of limitations for a cause of action filed under § 1983 of Title 42 of the United States Code, the court applies the forum state's tolling doctrines. See Hardin, 490 U.S. at 543-44, 109 S.Ct. 1998, 104 L.Ed.2d 582; Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995). The Nevada Supreme Court has not published a case in which it was faced with the prospect of applying the doctrine of equitable tolling to Nev.Rev.Stat. § 11.190(4)(e), which is the applicable statute of limitations for claims arising under 42 U.S.C. § 1983. See Perez, 869 F.2d at 425. In the absence of controlling Nevada law, this Court must use its own best judgment in determining how the Nevada Supreme Court would decide the substantive issue. See Associated Aviation Underwriters, Inc. v. Vegas Jet, L.L.C., 106 F.Supp.2d 1051, 1053 (D.Nev.2000). Although there is no controlling law, the Nevada courts have dealt with the issue of equitable tolling in other contexts. In dealing with Nevada's anti-discrimination statutes, the Nevada Supreme Court set out Nevada's doctrine of equitable tolling as follows:

Without limiting or restricting the application of the doctrine of equitable tolling, we note that there are several factors which have been mentioned...