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Tomlin v. Gafvert

United States District Court, D. Arizona

August 3, 2015

John Henry Tomlin, Plaintiff,
v.
Nathaniel E. Gafvert, et al., Defendants.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

Plaintiff John Henry Tomlin brought this pro se civil rights action under 42 U.S.C. § 1983 against two Mesa Police Department Officers: Nathaniel E. Gafvert and Kevin Gillis (Doc. 16). Before the Court is Defendants' Motion to Dismiss based on statute-of-limitations grounds (Doc. 22).

The Court will deny the motion.

I. Background

Tomlin initiated this lawsuit in Maricopa County Superior Court on December 4, 2012, while he was confined in the Maricopa County Jail in Phoenix, Arizona (Doc. 1-1 at 2, CV 2012-017916). In his Complaint, Tomlin named as Defendants Gafvert and John Does #1, #2, and #3 ( id. ). Tomlin attempted service on Gafvert multiple times to no avail (Doc. 1-3 at 40). On May 7, 2013, Gafvert moved to dismiss the Complaint for failure to serve (Doc. 1-3 at 97-98 (July 9, 2013 Minute Entry)). The state court denied Gafvert's motion and extended the deadline to serve Defendants to October 31, 2013 ( id. ). On September 30, 2013, before Tomlin completed service, Gafvert removed the case to this Court (Doc. 1).

On January 15, 2014, the Court dismissed Tomlin's Complaint because it was not filed on the court-approved form (Doc. 7).

On February 4, 2014, Tomlin filed his First Amended Complaint, which named Gafvert and Gillis as Defendants (Doc. 8). Before the Court screened the amended pleading, Tomlin moved to amend his First Amended Complaint (Doc. 10). The Court granted his motion to amend, docketed the Second Amended Complaint, and screened it (Doc. 14). The Court determined that Tomlin's claim for excessive force did not include sufficient facts to evaluate whether the use of force during his arrest was reasonable; that is, whether he posed a threat or was resisting arrest ( id. at 5). Tomlin was granted leave to amend, and, on July 25, 2014, he filed his Third Amended Complaint (Doc. 16).

The Court screened the Third Amended Complaint and determined that Tomlin remedied the deficiencies, and Gafvert and Gillis were directed to respond to Tomlin's allegations (Doc. 19).

Specifically, Tomlin alleged that at 9:20 p.m. on January 3, 2012, he was walking his bicycle in Mesa when he stopped to throw away some trash, at which point Gafvert, who was driving an un-marked police truck, suddenly stopped, exited the truck, and approached Tomlin (Doc. 16). According to Tomlin, Gafvert inquired about what Tomlin was doing, and Tomlin told him he was just throwing away trash ( id. ). Tomlin claimed that Gillis then arrived in another un-marked police vehicle, and then Gafvert suddenly and forcefully knocked Tomlin to the ground and hit him on the head with something sharp ( id. ). Both Defendants then handcuffed Tomlin while he was semi-conscious ( id. ). Tomlin claimed that he committed no crime to prompt the use of force, he posed no threat to Defendants, and he had no weapon ( id. ). He further claimed that he did not resist arrest and was surprised by the attack ( id. ). Tomlin stated that he suffered various injuries, including a large wound to his right shoulder; a lower-back injury that makes it difficult to walk and that required him to seek emergency medical care; head injuries that became infected and that caused him headaches; and mental and emotional damage ( id. ).

On March 5, 2015, Defendants filed their Motion to Dismiss, arguing that Tomlin's claim is time-barred because he was injured on January 3, 2012, yet he did not raise his excessive-force claim until he filed his First Amended Complaint on February 12, 2014-outside of the two-year statute of limitations (Doc. 22 at 2). Defendants contend that Tomlin's amended pleading does not relate back to the original Complaint because he did not assert the excessive force claim in his original Complaint and, therefore, he fails to satisfy the requirements of Federal Rule of Civil Procedure 15(c)(1) ( id. at 2-3). They also contend that Tomlin never asserted any claim against Gillis within the statute of limitations because Gillis was not named as a Defendant until after the statute of limitations period expired ( id. at 4).

II. Governing Standards

A. Statute of Limitations

Section 1983 does not include its own statute of limitations. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). 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. Marks v. Parra, 785 F.2d 1419, 1420 (9th Cir. 1986); 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 ...


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