Opinion
No. C 00-3274 PJH (PR)
September 25, 2001
DENIAL OF DEFENDANTS' MOTION TO DISMISS
This is a civil rights case filed pro se by a state prisoner. All defendants have moved to dismiss the complaint on grounds it is barred by the statute of limitations.
DISCUSSION
1. Applicable law
Section 1983 does not contain its own limitations period. The appropriate period is that of the forum state's statute of limitations for personal injury torts. See Wilson v. Garcia, 471 U.S. 261, 276 (1985); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999); Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). In California, the applicable statute of limitations in § 1983 actions is one year, as set forth in California Civil Procedure Code § 340(3). Id.
A federal court must give effect to a state's tolling provisions. Hardin v. Straub, 490 U.S. 536, 543-44 (1989); Marks v. Parra, 785 F.2d 1419, 1419-20 (9th Cir. 1986). In California, this includes tolling the statute of limitations during imprisonment. California Civil Procedure Code section 352.1 recognizes imprisonment as a disability that tolls the statute of limitations when a person is "imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term of less than for life." See Cal. Civ. Proc. Code § 352.1 (a). The tolling is not indefinite, however; the disability of imprisonment delays the accrual of the cause of action for a maximum of two years. See id. Thus, most California inmates have three years to bring a § 1983 claim for damages in California, i.e., the regular one year period under section 340(3) plus two years during which accrual was postponed due to the disability of imprisonment.
Section 352.1 was enacted on January 1, 1995 to replace a statute that toiled the statute of limitations for the entire prison term. See Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999).
2. Analysis
In reviewing a motion to dismiss the court considers only the contents of the complaint, and construes all allegations of material fact in the light most favorable to the nonmoving party. See Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996); Allarcom Pay Television. Ltd. v. General Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46; Tyler v. Cisneros, 136 F.3d 603, 607 (9th Cir. 1998).
The following are the allegations of the complaint that the Court takes as true for purposes of ruling on the motion to dismiss on statute of limitations grounds: In January of 1999 Plaintiff caught a cold as a result of being forced to exercise outdoors in a T-shirt and underwear when the temperatures were in the thirties and forties. From February through April of 1999 the illness became worse, to the point where he was suffering severe chest pains, spitting up blood, racked with coughs, had lost fifty pounds, and had a high temperature, Throughout this period he pleaded for medical assistance and filed numerous inmate grievances, but was ignored. In April of 1999 he was taken to the infirmary, where he was given oxygen and an IV and moved to a Marin hospital. He was diagnosed as having pneumonia and a "large pleural effusion." His lungs were operated upon on April 7, 1999. After his return to San Quentin on April 22, 1999, he did not receive all the medication or the nutritional supplement that had been ordered by the doctors. These problems were not completely resolved until July of 1999. In March of 2000 he was told by a doctor at the Marin hospital that his continuing respiratory problems were probably caused by the pleural cavity infection in March and April of 1999. This complaint was filed on September 11, 2000.
The court may grant a motion to dismiss based on the running of the statute of limitations "only if the assertions in the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Pisciotta v. Teledyne Industries, Inc., 91 F.3d 1326, 1331 (9th Cir. 1996). In this case it is clear that Plaintiff has been in prison throughout the relevant period; the question is whether this could be a basis for tolling under California Civil Procedure Code section 352.1.
Plaintiff is on death row. Although read literally section 352.1 tolls the statute of limitations only for persons who are serving terms of imprisonment less than for life, California courts have held that a prisoner serving a life sentence is entitled to the tolling benefit of section 352.1 (formerly section 352(a)(3)). See Grasso v. McDonouqh Power Equip., 264 Cal.App.2d 597, 601 (1968).
The Ninth Circuit has said in regard to an earlier version of the statute, former California Civil Procedure Code § 352(a)(3), that whether Grasso should be overruled is matter for the state courts or the California legislature. Martinez v. Gomez, 137 F.3d 1124, 1125-26 (9th Cir. 1998) (following Grasso). Although the California legislature replaced § 352(a)(3) with § 352.1, it left the relevant statutory language regarding entitlement to tolling unchanged from the prior statute. Absent alternative guidance from the California courts, Grasso remains the law. See Martinez V. Gomez, 137 F.3d 1124, 1125-26 (9th Cir. 1998).
With tolling, the statute of limitations is three years. The events upon which the complaint is based occurred in 1999 at the earliest. This complaint was filed on September 11, 2000, well within three years. The motion to dismiss will be denied.
CONCLUSION
Defendants' motion to dismiss (doc 18) is DENIED. Plaintiff's motion for an extension of time (doc 24) is DENIED as moot.
Defendants shall file a motion for summary judgment or other dispositive motion within sixty days of the date this order is entered, or if they consider that such a motion is not appropriate, shall so inform the Court within that time. If a motion is filed Plaintiff shall file an opposition within thirty days of the date the motion is served, and Defendants may a reply, if they wish, within fifteen days of the date the opposition is served. The motion will be deemed submitted on the day the reply is filed or when the time for doing so expires. The motion will be ruled upon without oral argument, unless otherwise ordered by the Court.