United States District Court, D. Arizona
Armando A. Marroquin, Plaintiff,
Yolanda Fernandez-Carr, et al., Defendants.
G. Campbell United States District Judge
Armando A. Marroquin, who is confined in the Adelanto ICE
Processing Center in Adelanto, California, brought this civil
rights case pursuant to 42 U.S.C. § 1983. Before the
Court are Defendants' Motions to Dismiss (Docs. 24, 38,
50, 60). Plaintiff was informed of his rights and obligations
to respond (Doc. 27, 40, 52, 61), and he opposes the motions.
(Doc. 37, 44, 65.) Defendants' motions will be granted in
part and denied in part.
screening of the Second Amended Complaint (Doc. 14) pursuant
to 28 U.S.C. § 1915A(a), the Court determined that
Plaintiff stated First Amendment claims against Defendants
Fernandez-Carr and Prince in Counts One and Two,
respectively; Eighth Amendment claims against Defendants
Burnett and Matranga in Counts Three and Four, respectively;
and First and Eighth Amendment claims against Defendants
Cosby and Kelly in Counts Five and Six, respectively. (Doc.
16.) The Court ordered Defendants to respond to the
respective claims against them. (Id.) On May 23,
2017, Defendant Giovino was substituted for Defendant
Matranga. (Doc. 36.)
move to dismiss certain portions of the Second Amended
Complaint on the grounds that these claims are barred by the
statute of limitations and that Plaintiff has failed to state
a claim. (Docs. 24, 38, 50.) Defendants also move to dismiss
for failure to prosecute. (Doc. 60.)
Federal Rule of Civil Procedure 12(b)(6)
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).
general rule, when deciding a Rule 12(b)(6) motion, the court
looks only to the face of the complaint and documents
attached thereto. Van Buskirk v. Cable News Network,
Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach
Studios, Inc. v. Richard Feiner & Co., Inc., 896
F.2d 1542, 1555 n.19 (9th Cir. 1990). If a court considers
evidence outside the pleading, it must convert the Rule
12(b)(6) motion into a Rule 56 motion for summary judgment.
United States v. Ritchie, 342 F.3d 903, 907-08 (9th
Cir. 2003). A court may, however, consider documents
incorporated by reference in the complaint or matters of
judicial notice without converting the motion to dismiss into
a motion for summary judgment. Id.
12(b)(6) motion to dismiss is almost never an appropriate
response when the Court has already screened a prisoner
complaint pursuant to 28 U.S.C. § 1915A(b) and directed
the defendants to respond. The standard for dismissal under
Rule 12(b)(6) is identical to the standard under 28 U.S.C.
§ 1915A(b). After the Court has screened a prisoner
complaint pursuant to § 1915A(b), a Rule 12(b)(6) motion
to dismiss should be granted only if the defendants can
convince the Court that reconsideration is appropriate.
Reconsideration is appropriate only if the district court
“(1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” School Dist. No. 1J, Multnomah
Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.
Statute of Limitations
argue that Plaintiff's claims that arose before May 25,
2014 - two years prior to the filing of his original
Complaint - are barred by the two-year statute of
limitations. Section 1983 does not include its own statute of
limitations. TwoRivers v. Lewis, 174 F.3d 987, 991
(9th Cir. 1999). Federal courts apply the statute of
limitations governing personal injury claims in the forum
state, “along with the forum state's law regarding
tolling, including equitable tolling, except to the extent
any of these laws is inconsistent with federal law.”
Butler v. Nat'l Cmty. Renaissance of Cal., 766
F.3d 1191, 1198 (9th Cir. 2014) (citation omitted). 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.
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 v.
Lewis, 174 F.3d 987, 991 (9th Cir. 1999). 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.” Kimes v. Stone, 84 F.3d 1121, 1128
(9th Cir. 1996). For a statute of limitations defense to be
decided on a motion to dismiss, the untimeliness must clearly
appear on the face of the complaint. See Supermail Cargo,
Inc. v. U.S., 68 F.3d 1204, 1206-1207 (9th Cir. 1995).
to Defendants' arguments, it is not clear from the face
of the Complaint when Plaintiff completed the administrative
grievance process or whether the statute of limitations would
have been tolled while he completed that process. See
Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005)
(holding that the “applicable statute of limitations
must be tolled while a prisoner completes the mandatory
exhaustion process.”). Further, it is not apparent from
the face of the Complaint whether the continuing violations
doctrine could apply to toll the statute of limitations with
respect to Plaintiff's medical claims. See Evans v.
Cty. of San Diego, No. 06 CV 0877 JM(RBB), 2008 WL
842459, at *12 (S.D. Cal. Mar. 27, 2008) (citing cases that
applied continuing violation doctrine to § 1983 claims
based on deliberate indifference, and holding that statute of
limitations began running on last date of allegedly
unconstitutional medical treatment pursuant to the continuing
violations doctrine). The Court cannot determine whether
Plaintiff's claims are barred by the statute of
limitations at this early stage of the litigation, and
Defendants' Motions to Dismiss will be denied without
prejudice as to that issue.