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 action pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971). (Doc. 18.) Defendant Sardinas has filed a
Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), claiming that Plaintiff's claim against him is
barred by the applicable statute of limitations. (Doc. 39.)
Plaintiff was informed of his rights and obligations to
respond, and he opposes the Motion. (Docs. 40, 44.) The Court
will grant the Motion to Dismiss and terminate this action.
original Complaint was filed on February 3,
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, an officer
with the Drug Enforcement Administration (DEA), and an
unnamed agent of United States Immigration and Customs
Enforcement (ICE). (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
Barbara Hopkins for Barbara Brown. (Doc. 18.) On January 17,
2017, Plaintiff moved to substitute Eugenio Sardinas for the
unknown ICE agent. (Doc. 33.) The Court granted the motion,
allowed the substitution of Sardinas, and ordered Sardinas to
answer the FAC. (Doc. 36.)
FAC, Plaintiff asserts one count of excessive force by an
officer and alleges that on January 24, 2014, officers of ICE
and the 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 exited the van. (Id.) When he exited
the van, “they” started beating him, he went
down, and “they” kicked him all over his body
until they saw Plaintiff was bleeding and not moving.
(Id.) Plaintiff did not try to hit back or run.
(Id.) Plaintiff has suffered pain ever since and is
confined to a wheelchair due to the incident. (Id.)
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 for failure to state a claim, 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). 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 also consider
matters of public record, including pleadings, orders, and
other papers filed with the court. Mack v. S. Bay Beer
Distrib., 798 F.2d 1279, 1282 (9th Cir.1986),
abrogated on other grounds by Astoria Fed. Savings and
Loan Ass'n v. Solimino, 501 U.S. 104 (1991).
forum state's personal injury statute of limitations and
any tolling provisions applies to Bivens claims.
See Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir.
1991); Papa v. United States, 281 F.3d 1004, 1009
(9th Cir. 2002); Butler v. Nat'l Cmty. Renaissance of
Cal., 766 F.3d 1191, 1198 (9th Cir. 2014). 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).
The statute of limitations may be tolled if a plaintiff is
prevented from filing an action “due to sufficiently
inequitable circumstances” or “extraordinary
circumstances beyond plaintiffs' control.”
McCloud v. Ariz. Dep't of Pub. Safety, 170 P.3d
691, 696 (Ariz.Ct.App. 2007) (internal citations and
quotations omitted). Federal law determines when a
Bivens claim accrues. Papa, 281 F.3d at
1009 (citation omitted). Such a claim accrues “when the
plaintiff knows or has reason to know of the injury that is
the basis of the cause of action.” Douglas v.
Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009).
Sardinas argues that Plaintiff's claim accrued on January
24, 2014 and expired on January 24, 2016 - before Plaintiff
filed his original Complaint. (Doc. 39 at 4.) Plaintiff did
not name Sardinas as a Defendant until October 14, 2016, and
Sardinas contends that even if the Court found that
Plaintiff's amended claim naming Sardinas relates back to
the original Complaint, the claim would still be barred
because Plaintiff did not file his original Complaint until
February 3, 2016. (Id.)
argues in his Response that the statute of limitations should
be tolled. (Doc.44 at 2.) Plaintiff asks the Court to
consider that (1) he does not write or speak English and has
had to depend on help from others, (2) he is not versed in
the law, (3) his court-appointed attorney did not properly
assist him in his criminal proceedings, and (4) he no longer
has legal assistance and is not capable of making intelligent
and knowing decisions. (Id.) Plaintiff asserts that
he is confined to a wheelchair “as [a] result of the
beating (police brutality and e[x]cess of force) inflicted
by officer Sardinas and his fellow co-workers (arresting
officer).” (Id. at 3.)
claims that Sardinas was one of the officers who used
excessive force against him on January 24, 2014.
(See Doc. 18 at 3.) Plaintiff knew or had reason to
know of his injuries on that date and he has not presented
any evidence that he did not become aware of his injuries
until some later date. See Cabrera v. City of Huntington
Park, 159 F.3d 374, 380-81 (9th Cir. 1998) (finding that
Plaintiff had reason to know of the injury on an excessive
force claim on the day the excessive force occurred).
Therefore, under Arizona's two-year statute of
limitations for personal injury claims, and absent tolling,
Plaintiff was required to file his original complaint by
January 24, 2016.
asserts a variety of potential impediments to filing a
complaint, but he does not show how any of those potential
impediments prevented him from filing a complaint for more
than two years after he knew of the alleged use of excessive
force. If someone with English proficiency was required to
help with his Complaint, Plaintiff does not say that he could
not obtain such help until after the expiration of the
limitations period. Lack of legal sophistication is not an
“extraordinary circumstance” warranting tolling
of a limitations period. See Raspberry v. Garcia,448 F.3d 1150, 1154 (9th Cir. 2006) (holding that “a
pro se petitioner's lack of legal sophistication is not,
by itself, an ...