Opinion
CASE NO. 3:19-CV-05505-BHS-DWC
08-05-2019
DONALD W ROWNAN, Plaintiff, v. KATHLEEN OLIVER, et al., Defendants.
REPORT AND RECOMMENDATION Noting Date: August 23, 2019
Plaintiff Donald W. Rownan, proceeding pro se, filed this civil rights complaint pursuant to 42 U.S.C. § 1983. After reviewing Plaintiff's Amended Complaint, the Court finds Plaintiff has failed to state a claim and has failed to adequately respond to the Court's Order to Show Cause. Therefore, the Court recommends this action be dismissed and all pending motions, including the Motion for Leave to Proceed In Forma Pauperis (Dkt. 1), be denied as moot.
I. Background
In the Amended Complaint, Plaintiff, who is housed at the Olympic Corrections Center, alleges Defendants - Pierce County Prosecutors Kathleen Oliver, Frank Krall, and Scott Petters - violated his Fourteenth Amendment right to due process by "wrongfully and unlawfully imprison[ing]" him. Dkt. 8, p. 5. Specifically, Plaintiff alleges Defendants kept him incarcerated despite another person being convicted of the crime Plaintiff was alleged to have committed. Dkt. 8, pp. 4-5. Plaintiff alleges he should have been released "pending investigation" but was instead incarcerated on the charges from December 25, 2015 until April 5, 2016. Id. Plaintiff seeks monetary damages for his alleged wrongful imprisonment. Id. at pp. 5-6.
On June 11, 2019, the Court screened Plaintiff's Complaint and found it was deficient. See Dkt. 3. The Court ordered Plaintiff to correct the deficiencies in the Complaint by July 11, 2019. Id. After the Court granted Plaintiff an extension of time, Plaintiff filed the Amended Complaint on July 22, 2019. Dkt. 7, 8.
II. Discussion
Under the Prison Litigation Reform Act of 1995, the Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must "dismiss the complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. at (b); 28 U.S.C. § 1915(e)(2); see Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998).
A. Failure to State a Claim
In the Amended Complaint, Plaintiff named three Pierce County Prosecutors as Defendants. See Dkt. 8, p. 3. Prosecutors are entitled to absolute immunity from liability for damages under § 1983. Imbler v. Pachtman, 424 U.S. 409, 427 (1976). Prosecutorial immunity protects a prosecutor who "acts within his or her authority and in a quasi-judicial capacity." Asheleman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986) (citing Imbler, 424 U.S. at 430-31). "Such immunity applies even if it leaves 'the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.'" Id. (quoting Imbler, 424 U.S. at 427). As Defendants have immunity, Plaintiff has failed to state a claim against them and his claims cannot proceed.
Further, Plaintiff fails to clearly identify how any of the Defendants allegedly violated his rights, or clearly state the alleged wrongdoing of each Defendant. He provides only generalized statements alleging Defendants unlawfully incarcerated him after another person admitted to a crime and that he "should have been released . . . pending investigation." See Dkt. 8, p. 5. Without properly alleging actions each Defendant took which violated his rights, Plaintiff has failed to state a claim for which relief can be granted in this action. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (the pleading must be more than an "unadorned, the-defendant-unlawfully-harmed-me accusation"); Jones v. Community Development Agency, 733 F.2d 646, 649 (9th Cir. 1984) (vague and mere conclusory allegations unsupported by facts are not sufficient to state section 1983 claims).
B. Statute of Limitations
In the Complaint, Plaintiff alleges he was wrongfully imprisoned from December 25, 2015 until April 5, 2016. Dkt. 8, p. 5.
A complaint must be timely filed. The Civil Rights Act, 42 U.S.C. § 1983, contains no statute of limitations. "Thus, the federal courts [] apply the applicable period of limitations under state law for the jurisdiction in which the claim arose." Rose v. Rinaldi, 654 F.2d 546, 547 (9th Cir. 1981). In Rose, the Ninth Circuit determined the three-year limitations period identified in Revised Code of Washington 4.16.080(2) is the applicable statute of limitations for § 1983 cases in Washington. 654 F.2d at 547; see R.C.W. § 4.16.080(2).
The Court also applies the forum state's law regarding equitable tolling for actions arising under § 1983. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). In Washington, courts permit equitable tolling "when justice requires." Millay v. Cam, 135 Wash.2d 193, 206 (1998). "The predicates for equitable tolling are bad faith, deception, or false assurances by the defendant and the exercise of diligence by the plaintiff." Id. Courts "typically permit equitable tolling to occur only sparingly, and should not extend it to a garden variety claim of excusable neglect." State v. Robinson, 104 Wash.App. 657, 667 (2001) (internal quotations omitted). Washington State also allows for a tolling period when a person is imprisoned on a criminal charge prior to sentencing. See R.C.W. § 4.16.190; see also Williams v. Holevinski, 2006 WL 216705, *2 (E.D. Wash. July 31, 2006).
Although the statute of limitations is an affirmative defense which normally may not be raised by the Court sua sponte, it may be grounds for sua sponte dismissal of an in forma pauperis complaint where the defense is complete and obvious from the face of the pleadings or the Court's own records. See Franklin v. Murphy, 745 F.2d 1221, 1228-30 (9th Cir. 1984).
Plaintiff alleges that he was unlawfully incarcerated from December 25, 2015 to April 5, 2016. Dkt. 8, pp. 4-5. As such, based on the allegations contained in the Amended Complaint, Plaintiff had actual notice of the facts related to the claims alleged in the Amended Complaint on December 25, 2015 (or at the latest, April 5, 2016). See id.; Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996) (a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action). Taking the latest date possible, the time for filing a lawsuit expired on April 5, 2019, three years after Plaintiff was released from his alleged wrongful imprisonment. See Dkt. 8. Plaintiff signed - effectively filing - the Complaint on May 23, 2019, nearly seven weeks after the last possible date the statute of limitations expired. See Dkt. 1-1. Plaintiff has not alleged facts showing statutory or equitable tolling is applicable in this case. See Dkt. 8. Therefore, Plaintiff has failed to state a claim for which relief can be granted in this action.
Further, Plaintiff failed to follow the Court's Order to Show Cause on the issue of statute of limitations. In the Order to Show Cause, the Court found Plaintiff's claims possibly barred by the statute of limitations and directed Plaintiff to show cause why this action should not be dismissed as untimely. See Dkt. 3. Plaintiff failed to provide information showing statutory or equitable tolling is applicable in this case. See Dkt. 8. The Court finds Plaintiff's failure to adequately address issues raised in the Order to Show Cause also warrants dismissal.
C. Leave to Amend
The Ninth Circuit has "established that a pro se litigant bringing a civil rights suit must have an opportunity to amend the complaint to overcome deficiencies unless it is clear that they cannot be overcome by amendment." Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th Cir. 1987). The Court finds Plaintiff has failed to allege facts sufficient to show Defendants liable under § 1983. The Court finds Plaintiff cannot overcome the deficiencies of his claim against Defendants. Moreover, the Court previously notified Plaintiff that his claims were possibly barred by the statute of limitations. See Dkt. 3. As Plaintiff has been given leave to amend and has been instructed regarding the deficiencies of his claims, the Court recommends Plaintiff not be given leave to again amend his claims. See Swearington v. California Dep't of Corr. & Rehab., 624 F. App'x 956, 959 (9th Cir. 2015) (finding the district court did not abuse its discretion in dismissing without leave to amend because the plaintiff did not cure the complaint's deficiencies despite the district court's specific instructions about how to do so); see also Fid. Fin. Corp. v. Fed. Home Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir.1986) ("The district court's discretion to deny leave to amend is particularly broad where the court has already given the plaintiff an opportunity to amend his complaint.").
III. Conclusion
For the above stated reasons, the undersigned recommends Plaintiff's Amended Complaint be dismissed without prejudice for failure to state a claim and all pending motions, including the Motion for Leave to Proceed In Forma Pauperis (Dkt. 1), be denied. The Court also recommends this dismissal count as a strike. See 28 U.S.C. § 1915(g).
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the clerk is directed to set the matter for consideration on August 23, 2019, as noted in the caption.
Dated this 5th day of August, 2019.
/s/_________
David W. Christel
United States Magistrate Judge