Opinion
Case No.: C 14-1445 JSC (PR)
06-16-2014
RICHARD GARY GARVER, Plaintiff, v. T. MAYES, et al., Defendants.
ORDER OF DISMISSAL
INTRODUCTION
Plaintiff, a California prisoner, filed this pro se civil rights complaint under 42 U.S.C. § 1983 against officials at Pelican Bay State Prison. His application to proceed in forma pauperis is granted in a separate order. For the reasons explained below, the complaint is dismissed.
Plaintiff has consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 5.)
STANDARD OF REVIEW
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
DISCUSSION
Plaintiff claims that after returning to prison from the hospital, where he was treated for a heart attack, defendants required him to walk in restraints and he fell over and broke his arm. These events took place in 2007. Plaintiff brought these claims in a prior lawsuit in 2008, which was dismissed without prejudice because he had not exhausted his administrative remedies. See Garver v. Mayes, et al., No. C 08-1834 WHA (PR) (Dkt. No. 13).
Plaintiff's claims are untimely because they arise from events that occurred more than seven years ago. The statute of limitations for a claim under 42 U.S.C. § 1983 is two years. SeeJackson v. Barnes, 749 F.3d 755, 761 (9th Cir. 2014). Plaintiff is entitled to a maximum of two years of tolling based upon his imprisonment. See Cal. Code of Civ. Pro. § 352.1(a); see also Martinez v. Gomez, 137 F.3d 1124, 1125-26 (9th Cir. 1998) (applying California Code of Civil Procedure to determine tolling of section 1983 claim due to imprisonment). Thus, claims that accrued more than four years before they were filed are untimely. A claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. Two Rivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 1999). Here, plaintiff knew of his injury --- the broken arm -- when it occurred in 2007. Thus, his claims accrued more than four years ago and are untimely. The claims are untimely even if the statute is also tolled for the 17 months during which his first action, No. 08-1834 WHA, was pending.
Claims may be dismissed sua sponte under 28 U.S.C. § 1915A where, as here, the statute of limitations defense is complete and obvious from the face of the pleadings. See Franklin v. Murphy, 745 F.2d 1221, 1228-30 (9th Cir. 1984). Accordingly, Plaintiff's claims will be dismissed with prejudice.
CONCLUSION
Because Plaintiff's claims are barred by the statute of limitations, the complaint is DISMISSED with prejudice.
The Clerk shall enter judgment and close the file.
IT IS SO ORDERED. Dated: June 16, 2014
/s/_________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE