United States District Court, D. Arizona
June 19, 2014
Armando Antonio Marroquin, Plaintiff,
Jim McDonald, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
Plaintiff Armando Antonio Marroquin, who is currently confined in the La Palma Correctional Center in Eloy, Arizona, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff presents claims stemming from his LPCC incarceration as well as his prior incarceration at the Florence Correctional Center in Florence, Arizona (Doc. 1). Defendants Ward and Hudson-FCC employees-move to dismiss the claims against them on the ground that they are barred by the statute of limitations (Doc. 13).
The Court will grant the motion.
In Counts Two and Three of his Complaint, Plaintiff alleged that in January 2009, Ward and Hudson told inmates working in the prison kitchen that Plaintiff had filed a grievance against the other inmates. Plaintiff alleged that Defendants' actions were taken in retaliation for a grievance Plaintiff filed against Ward. Defendants actions led to multiple threats against Plaintiff and ended in an assault on Plaintiff by several inmates on July 9, 2009, which caused Plaintiff serious injury.
Plaintiff filed suit against Ward and Hudson in March 2010, presenting deliberate indifference and retaliation claims (10-CV-0596-PHX-DGC (LOA)). Those claims were dismissed in October 2010 for failure to exhaust administrative remedies (Doc. 31, 10-CV-0596-PHX-DGC (LOA)). Plaintiff filed this action again presenting his deliberate indifference and retaliation claims on August 27, 2013.
II. Motion to Dismiss
A. Statute of Limitations
When the statute of limitations forms the basis of a motion to dismiss for failure to state a claim, the motion can be granted "if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980); see also TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). Although courts will not normally look beyond the pleadings in resolving a Rule 12(b)(6) motion, Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001), a "court may consider material that the plaintiff properly submitted as part of the complaint or, even if not physically attached to the complaint, material that is not contended to be inauthentic and that is necessarily relied upon by the plaintiff's complaint." Id . The court may consider matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir.1986) ( abrogated on other grounds by Astoria Federal Savings and Loan Ass'n v. Solimino, 501 U.S. 104 (1991)).
Section 1983 of Title 42 of the U.S.C. does not include its own statute of limitations. TwoRivers, 174 F.3d at 991. Therefore, federal courts apply the statute of limitations governing personal injury claims in the forum state. Wilson v. Garcia, 471 U.S. 261, 280 (1985); TwoRivers, 174 F.3d at 991. In Arizona, the limitations period for personal injury claims is two years. TwoRivers, 174 F.3d at 991; see also Ariz. Rev. Stat. § 12-542 (providing that actions for personal injury must be commenced within two years after the cause of action accrues).
Although the statute of limitations applicable to § 1983 claims is borrowed from state law, federal law continues to govern when a § 1983 claim accrues. Wallace v. Kato, 549 U.S. 384, 388 (2007); TwoRivers, 174 F.3d at 991. 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." TwoRivers, 174 F.3d at 991; Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996).
Here, Plaintiff alleges that Defendants intentionally placed him at risk in January 2009, which resulted in a serious assault on July 9, 2009. These allegations also make clear that Plaintiff was contemporaneously aware of Defendants' actions and their consequences. Cabrera v. City of Huntington Park, 159 F.3d 374, 379 (9th Cir. 1998) (Section 1983 claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of his action). As a result, absent tolling, the limitations period expired no later than July 9, 2011, which was over two years before Plaintiff filed his initial Complaint in this action on August 27, 2013 (Doc. 1).
Plaintiff appears to argue that his prior attempts at litigation should toll the statute of limitations. He explains that in addition to his 2010 civil action in this Court, he filed suit in the Northern District of California upon the advice of a law library clerk and other inmates. Plaintiff also alleges that he appealed the Court's dismissal of the 2010 civil action, which took a year to adjudicate. But Plaintiff's prior litigation does not present a legally cognizable basis for tolling. Barber v. Nelson, 2009 WL 449250, at *4 (Ariz.Ct.App. Feb. 24, 2009). Nor does Plaintiff's bare assertion that he was unaware of the statute of limitations.
The Court recognizes, however, that "the applicable statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process." Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (emphasis added). But as identified in the 2010 civil action, the entire prison grievance process at FCC takes no more than 90 days to complete (10-CV-0596-PHX-DGC (LOA), Doc. 17, Ex. 1, Partain Aff. ¶¶ 14-26). Therefore, even excluding the maximum time-or triple the maximum-for completing the grievance process, such tolling does not alter the conclusion that the statute expired nearly two years before Plaintiff filed this action. Therefore, the claims against Ward and Hudson are time-barred and must be dismissed.
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Defendants' Motion to Dismiss (Doc. 13).
(2) Defendants' Motion to Dismiss (Doc. 13) is granted; Counts Two and Three against Ward and Hudson are dismissed as time-barred. Ward and Hudson are dismissed from this action.
(3) The remaining claims are Count Four against Wilkinson and Count Seven against Fernundez-Carr and Prince.