United States District Court, D. Arizona
G. Campbell United States District Judge
Marco Ochoa-Gonzalez, who is currently confined in the Rivers
Correctional Institution in Winton, North Carolina, brought
this civil rights case pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). Defendant Hopkins has filed a Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6),
claiming that Plaintiff's claims are barred by the
applicable statute of limitations. (Doc. 25.) Plaintiff was
informed of his rights and obligations to respond (Doc. 26),
and he failed to do so. The Court will grant the Motion to
original Complaint was filed on February 8, 2016. (Doc. 1.)
On screening pursuant to 28 U.S.C. § 1915A(a), the Court
determined that Plaintiff stated a claim against Defendant
Barbara Brown and an unnamed ICE officer. (Doc. 7 at 4.) On
August 15, 2016, Plaintiff filed his First Amended Complaint
(“FAC”), which was nearly identical to the
original Complaint, but substituted Defendant Barbara Hopkins
for Barbara Brown. (Doc. 18.)
alleged that on January 24, 2014, officers of the United
States Immigration and Customs Enforcement
(“ICE”) and the Drug Enforcement Administration
(“DEA”) used excessive force while he was under
arrest. (Doc. 18 at 3.) Plaintiff claims that after he was
arrested, his hands and feet were cuffed and he was placed in
a van. (Id.) While in the van, Plaintiff needed to
use the restroom and so exited the van. (Id.) When
he exited the van, officers started beating him, he fell to
the ground, and they kicked him all over his body.
(Id.) Plaintiff did not try to hit back or run.
(Id.) Plaintiff has suffered pain ever since and is
confined to a wheelchair. (Id.) Plaintiff alleged
that while he was being beaten, DEA Officer Hopkins was
holding a gun to his head. (Id.)
screening of the FAC, the Court directed Hopkins to answer
the claim against her. (Doc. 19.) On October 21, 2016,
Hopkins filed the Motion to Dismiss. (Doc. 25.) Plaintiff did
not file a response.
Motion to Dismiss Legal Standard
12(b)(6) motion “tests the legal sufficiency of a
claim.” Navarro v. Block, 250 F.3d 729, 732
(9th Cir. 2001). In deciding a Rule 12(b)(6) motion, the
court takes all allegations of material fact as true and
construes them in the light most favorable to the nonmoving
party. Marcus v. Holder, 574 F.3d 1182, 1184 (9th
Cir. 2009). The court will “‘presume that general
allegations embrace those specific facts that are necessary
to support the claim.'” Nat'l Org. for
Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994)
(quotation omitted). Where the plaintiff is a pro se
prisoner, the court must “construe the pleadings
liberally and  afford the petitioner the benefit of any
doubt.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010).
the statute of limitations forms the basis of a motion to
dismiss, the motion can be granted if the running of the
statute is apparent on the face of the complaint, and
“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). The forum state's personal injury statute of
limitations applies to Bivens claims. See Van
Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991).
Tolling provisions are also borrowed from the forum state.
See Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th
Cir. 2006), abrogated on other grounds by Simmons v.
Himmelreich, 135 S.Ct. 1843 (2016). In Arizona, the
forum state in this case, the statute of limitations for
personal injury claims is two years. A.R.S. § 12-542;
Marks v. Parra, 785 F.2d 1419, 1420 (9th Cir. 1986).
Federal law, however, determines when a Bivens claim
accrues. See Pesnell, 543 F.3d at 1043. A
Bivens claim accrues “when the plaintiff knows
or has reason to know of the injury.” Safouane v.
Hassett, 514 F. App'x 691, 692 (9th Cir. 2013).
argues that based on the face of Plaintiff's Complaint,
the alleged events in which she was purportedly involved
occurred on January 24, 2014. (Doc. 25 at 3.) Hopkins denies
that she committed any of the acts alleged by Plaintiff and
asserts that the only specific allegation against her is that
she was involved in the re-apprehension of Plaintiff on
January 24, 2014 after he left a law enforcement vehicle
without permission. (Id., citing Doc. 18 at 3.)
Hopkins argues that Plaintiff's claims against her
accrued on January 24, 2014, and that the statute of
limitations on Plaintiff's Bivens claims arising
out of the alleged assault expired on January 24, 2016, two
years after the date of the alleged assault. (Id.)
Hopkins argues that because Plaintiff did not file his
original Complaint until February 8, 2016, his claim against
her is barred by the statute of limitations and the Court
should dismiss the claim against her. (Id. at 3-4.)
alleges that Hopkins's involvement in the alleged
excessive force incident was to hold a gun to his head on
January 24, 2014. (Doc. 18 at 3.) Under Arizona's statute
of limitations for personal injury claims, and absent
tolling, Plaintiff was required to file his original
complaint by January 24, 2016. Reading Plaintiffs Complaint
with the required liberality, the Court finds no basis for
tolling the statute of limitations, and Plaintiff did not
respond to the Motion or suggest any reason that the statute
should be tolled. Plaintiff signed his original Complaint
with the date of February 3, 2016, which is after the January
24, 2016 deadline for filing his complaint.
the Court will grant Defendant Hopkins's Motion ...