Opinion
No. C-01-1317 PJH
March 25, 2002
ORDER RE MOTION TO DISMISS
The motion of defendants Timothy Hunt and City of Fremont for an order dismissing the complaint pursuant to Federal Rule of Civil Procedure 12 (b)(6) for failure to state a claim came on for hearing on March 20, 2002, before this court. Plaintiff appeared in pro per and defendants appeared by their counsel Arlene Helfrich. At the hearing, plaintiff requested leave to supplement his opposition to the motion, and the court granted the request and granted defendants time to respond to the additional arguments. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS defendants' motion for the following reasons.
Plaintiff Ladislav Mocak alleges that on February 28, 1994 ("the date of the incident"), Timothy Hunt, a Police Officer employed by the City of Fremont, California, used excessive force when he took plaintiff into custody for the purpose of involuntarily committing him to a psychiatric hospital for observation. Plaintiff alleges that from the date of the incident to the present, he has suffered both physical and mental impairments, which he attributes to the alleged excessive force.
Plaintiff asserts claims of personal injury, negligence, abuse of process, "class action," and violation of his civil rights, plus an an unspecified "penal-criminal" cause of action. The court interprets the complaint as one brought under 42 U.S.C. § 1983 for violation of plaintiff's fourth amendment right to be free from unreasonable search and seizure, with supplemental state tort claims. Defendants now seek an order dismissing the complaint for failure to state a claim.
The facts alleged and claims asserted in this case are virtually identical to those in Case No. C-00-2999 PJH, which was dismissed on September 27, 2000 as time-barred.
A court should dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) only where "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 (1957);Pillsbury, Madison Sutro v. Lerner, 31 F.3d 924, 928 (9th Cir. 1994). In assessing the motion, the court must accept as true the factual allegations of the complaint, and must construe them in the light most favorable to the nonmoving party. National Wildlife Federation v. Espy, 45 F.3d 1337, 1340 (9th Cir. 1995). Federal courts are particularly liberal in construing "inartful pleading" by parties appearing pro se.Hughes v. Rowe, 449 U.S. 5, 9 (1980).
In dismissing for failure to state a claim, "a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (quoting Cook, Perkiss Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990)).
The court finds that plaintiff's complaint is time-barred. The statute of limitations for § 1983 claims is based on the forum state's statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 276-79 (1985). For cases brought in federal judicial districts located in the State of California, the one-year statute of limitations in California Code of Civil Procedure § 340(3) applies to § 1983 claims. Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995).
Plaintiff's cause of action accrued on February 28, 1994, the date he was taken into custody. This action was filed on April 3, 2001, more than six years after the statute of limitations had expired. The court finds that both the § 1983 claim and the supplemental state law tort claims must be dismissed because they are barred by the statute of limitations.
Plaintiff has made no showing that the running of the statute of limitations should be tolled. In a § 1983 case where the statute of limitations is governed by California law, California Code of Civil Procedure § 352(a) determines whether and under what circumstances the statute can be tolled. Under section 352(a), the running of the statute may be tolled either where the plaintiff is under the age of majority, or where the plaintiff is insane "at the time the cause of action accrued." Cal. Civ. P. Code § 352(a). In either circumstance, "the time of the disability is not part of the time limited for the commencement of the action." Id.
Plaintiff does not allege that he was under the age of majority in 1994. Indeed, he alleges that he had a valid driver's license and that he was a licensed chiropractor at the time of his detention. Complaint ("Cplt") ¶¶ 3, 9. Nor does plaintiff allege that he was insane prior to February 28, 1994. Insanity under section 352 of the Code of Civil Procedure is defined as a condition of "mental derangement" that renders the individual "incapable of caring for his property or transacting business, or understanding the nature or effects of his acts." Hsu v. Mt. Zion Hosp., 259 Cal.App.2d 562, 571 (1968); see also Feeley v. So. Pacific Transp. Co., 234 Cal.App.3d 949, 952-53 (1991) (adjudication of insanity not conclusive; tolling also applies where plaintiff rendered unconscious by injury that provides basis for his claim). The insanity must continuously exist from the date the cause of action arose. Weinstock v. Eissler, 224 Cal.App.2d 212, 230-32 (1964).
Incompetency that arises after the accrual of a cause of action does not suspend the running of the statute of limitations. Larsson v. Cedars of Lebanon Hose., 97 Cal.App.2d 704, 707 (1950). Moreover, mere physical disability or nervous shock following an accident do not constitute insanity under § 352. Henein v. Saudi Arabian Parsons Ltd., 818 F.2d 1508 1514-15 (9th Cir. 1987), cert. denied, 484 U.S. 1009 (1988); Baker v. Beech Aircraft Corp., 39 Cal.App.3d 315, 322 (1974). Nor does post-traumatic syndrome. Snyder v. Boy Scouts of America, Inc., 205 Cal.App.3d 1318, 1324 (1988).
In this case, plaintiff alleges that although he had been treated for mental problems before 1994, he was, at the time of the incident, cured to the point that he did not require any medication, and was living "a rather ordered and disciplined life." Cplt ¶ 2. Thus, he cannot claim that he was incapable of transacting business or understanding the nature or effects of his acts at the time of the alleged incident. Plaintiff also asserts that since the date of the incident, he has completed three vocational training courses. Cplt ¶ 27. Thus, he cannot claim that he suffered from insanity from the date of the incident to the date he filed the complaint. Plaintiff makes no showing that he falls within one of the exceptions listed in Code of Civil Procedure 352, and the court finds no basis for tolling the running of the statute of limitations.
Accordingly, the court hereby GRANTS defendants' motion for an order dismissing the complaint. The § 1983 claim, as well as the state tort claims, are time-barred. The "penal-criminal" cause of action is dismissed because the provisions of the California Penal Code do not create enforceable individual rights. The "class action" cause of action is dismissed because no underlying claims remain in the case. Because the court finds that amendment would be futile, the dismissal is WITH PREJUDICE.
This order fully adjudicates the motion listed at No. 31 on the clerk's docket for this case, and terminates the action. The clerk is instructed to close the file and terminate any pending motions.
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee of the Office of the Clerk, U.S. District Court, Northern District of California.
That on March 27, 2002, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's Office.