Opinion
No. C 03-3690 TEH (pr)
November 10, 2003
ORDER OF DISMISSAL
Ernest Galindo, currently housed at the Atascadero State Hospital, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. Galindo complains of conditions of confinement at the Santa Clara County Jail that existed when he was housed there in September — October 1999 awaiting involuntarily commitment pursuant to civil commitment proceedings under California's sexually violent predator law, see Cal. Welf Inst. Code §§ 6600 — 6609.3. He seeks leave to proceed in forma pauperis. The court now reviews Galindo's complaint pursuant to 28 U.S.C. § 1915.
The court must dismiss an in forma pauperis action at any time if the court determines that the allegation of poverty is untrue, the action is frivolous or malicious, the action fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant immune from such relief. See 28 U.S.C. § 1915(e).Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
The complaint has a fatal defect: the claims therein are time-barred. The appropriate limitations period for a § 1983 action is that of the forum state's statute of limitations for personal injury torts.See Wilson v. Garcia, 471 U.S. 261, 276 (1985);Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). Because California has multiple statutes of limitations for different torts, the court borrows the general or residual statute for personal injury actions to use for a § 1983 action, which is now a two-year limitations period. See Cal. Code Civ. Proc. § 335.1. The court also must give effect to a state's tolling provisions.See generally Hardin v. Straub, 490 U.S. 536, 543-44 (1989). California Civil Procedure Code section 352.1 tolls the statute of limitations when a person is "imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term of less than for life." See Cal. Civ. Proc. Code § 352.1(a). The tolling is not indefinite, however; the disability of imprisonment delays the accrual of the cause of action for a maximum of two years. See id.
The two-year limitations period applies to Galindo's case. And he is not entitled to any tolling for the disability of imprisonment under California Code of Civil Procedure § 352.1. He emphatically asserts that he is not a prisoner and is not imprisoned on a criminal charge. He thus is not entitled to any tolling under § 352.1. His claims accrued in late 1999. His complaint in this action was not filed until August 3, 2003, and thus was about 22 months late. The claims therein are time-barred and the statute of limitations defense is complete and obvious on the face of the complaint and the court's own records.See Franklin v. Murphy, 745 F.2d 1221, 1228-30 (9th Cir. 1984) (sua sponte dismissal under 28 U.S.C. § 1915): see also Pisciotta v. Teledyne Industries. Inc., 91 F.3d 1326, 1331 (9th Cir. 1996) (court may grant a motion to dismiss based on the running of the statute of limitations "only if the assertions in the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled").
The complaint is dismissed with prejudice for failure to state a claim upon which relief may be granted. Galindo's in forma pauperis application is GRANTED. (Docket #2 and 5.) The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT
The complaint is dismissed with prejudice for failure to state a claim upon which relief may be granted.
IT IS SO ORDERED.