Opinion
ORDER GRANTING DEFENDANTS' MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION; VACATING ORDER DENYING DEFENDANTS' MOTION TO DISMISS; GRANTING DEFENDANTS' MOTION TO DISMISS
LUCY H. KOH, District Judge.
On June 11, 2012, plaintiff, a California state prisoner proceeding pro se, filed a civil rights action under 42 U.S.C. § 1983, alleging that correctional officers at Pelican Bay State Prison used excessive force upon him. On February 28, 2013, defendants filed a motion to dismiss the action as untimely. On June 11, 2013, the court denied defendants' motion to dismiss. Defendants have filed a motion for leave to file a motion for reconsideration. Plaintiff has not filed an opposition.
For the reasons that follow, defendants' motion for leave to file a motion for reconsideration is GRANTED, the court's June 11, 2013, order denying defendants' motion to dismiss is VACATED, and defendants' motion to dismiss is GRANTED.
I. LEGAL STANDARD
"Reconsideration is appropriate 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 v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). In the Northern District of California, no motion for reconsideration may be brought without leave of court. See Civil L.R. 7-9(a). Under Civil Local Rule 7-9, the moving party must specifically show: (1) that at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the court before entry of the interlocutory order for which the reconsideration is sought, and that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or (2) the emergence of new material facts or a change of law occurring after the time of such order; or (3) a manifest failure by the court to consider material facts or legal arguments which were presented to the court before such interlocutory order. See Civil L.R. 7-9(b).
II. ANALYSIS
Defendants ask the court to reconsider the denial of their motion to dismiss because plaintiff was not entitled to equitable tolling under California law, and without equitable tolling, plaintiff's complaint was untimely.
Previously, in Sandoval v. Tilton, No. 08-865 JSW (filed on Feb. 8, 2008), plaintiff had raised, inter alia, an excessive force claim. (Doc. No. 35, Req. Jud. Not., Ex. A.) After filing an amended complaint, defendants in Sandoval v. Tilton, No. 08-865 JSW, filed a motion to dismiss for failure to state a claim and misjoinder. ( Id., Ex. F.) On March 24, 2010, the court agreed and dismissed the amended complaint with leave to amend. ( Id., Ex. G.) The court informed plaintiff that if he wished to continue to pursue unrelated claims, he must raise the unrelated claims in separate complaints. The court further explained that the amended complaint failed to link several individual defendants to specific facts. On August 6, 2010, plaintiff filed a second amended complaint. ( Id., Ex. H.) On November 8, 2010, the court dismissed the second amended complaint because it did not comply with the court's directions to cure the stated deficiencies, including misjoinder and failing to link individual defendants to specific acts. ( Id., Ex. I.) Plaintiff appealed the dismissal, and the Ninth Circuit affirmed the judgment on February 9, 2012. ( Id., Ex. K.)
Plaintiff then filed the underlying action on June 11, 2012, and again raised the same excessive force claim as he had alleged in Sandoval v. Tilton, No. 08-865 JSW. Defendants filed a motion to dismiss the complaint as untimely. This court denied defendants' motion to dismiss. In the court's order, it agreed that, without tolling, the underlying action was approximately three years late. The court further determined that plaintiff was not entitled to statutory tolling because plaintiff was sentenced to a term of life without the possibility of parole. See Cal. Civ. Proc. Code § 352.1(a) (reconizing that imprisonment can toll 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.") (emphasis added). In addition, the court concluded that California's general doctrine of equitable tolling was inapplicable because plaintiff's first action - Sandoval v. Tilton, No. 08-865 JSW - was filed in the same forum as plaintiff's second underlying action. See Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (noting that the general doctrine of equitable tolling "reliev[es] plaintiff from the bar of a limitations statute when, possessing several legal remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage.'") (quoting Addison v. California, 21 Cal.3d 313, 317 (1978)); Thomas v. Gilliland, 95 Cal.App.4th 427, 525 (2002) ("The doctrine of equitable tolling, however, only applies where the plaintiff has alternate remedies and has acted in good faith.").
Then, the court examined California's Bollinger rule, Bollinger v. National Fire Ins. Co., 25 Cal.2d 399 (1944), which provided another, more narrow, type of equitable tolling when a plaintiff files a timely initial action, and then a secondary action in the same forum. Stated more specifically, Bollinger found that tolling was appropriate when: (1) the trial court erroneously dismissed the first action; (2) dilatory tactics on the part of the defendant "prevented disposition of the first action in time to permit a second filing within the [limitations period]"; and (3) the plaintiff had at all times proceeded in a diligent manner. Wood v. Elling Corp., 20 Cal.3d 353, 361 (1977). In the instant case, this court considered the unique procedural circumstances of the instant case, the fact that plaintiff had raised his excessive force claim in a timely manner in the first action, plaintiff's misunderstanding of the rule of joinder, and plaintiff's diligence in pursuing relief from the dismissal of the first action, and concluded that plaintiff should receive equitable tolling. As a result, the court denied defendants' motion to dismiss. Thereafter, defendants filed the underlying motion for reconsideration.
After careful consideration of defendants' arguments for reconsideration, the court concludes that the denial of defendants' motion to dismiss was based on a failure to consider the dispositive legal rule of Bollinger. See Civil L.R. 7-9(b)(3). California law makes clear that in order to be entitled to equitable tolling under the Bollinger rule, a plaintiff must demonstrate all three Bollinger factors. See Allen v. Greyhound Lines, Inc., 656 F.2d 418, 421 (9th Cir. 1981) ("The [California Supreme Court] thus made it clear that to avoid the literal language of [section 335], the plaintiff must demonstrate the existence of those three factors present in Bollinger. "); Hull v. Central Pathology Service Medical Clinic, 28 Cal.App.4th 1328, 1337 (1994) (reiterating that the three Bollinger factors are prerequisites expressly required to apply tolling); Wood, 20 Cal.3d at 361 ("the concurrence of the three factors present in Bollinger is essential to an application of the rule").
In denying defendants' motion to dismiss, this court did not consider that all three Bollinger factors must be present before equitable tolling can apply. Thus, despite plaintiff's first federal action, Sandoval v. Tilton, No. 08-865 JSW - which raised the underlying excessive force claim - being timely, the court's dismissal of that case for violating the rule of misjoinder was affirmed, plainly demonstrating that the dismissal for misjoinder was not in error. In addition, even though plaintiff appeared to diligently pursue his direct appeal, plaintiff has not and cannot demonstrate that defendants engaged in dilatory behavior, or that the court's initial dismissal was erroneous. Without satisfying all the Bollinger factors, plaintiff is not entitled to equitable tolling.
The court notes that some California cases list the Bollinger factors as: "(1) the plaintiff must have diligently pursued his or her claim; (2) the fact that the plaintiff is left without a judicial forum for resolution of the claim must be attributable to forces outside the control of the plaintiff; and (3) the defendant must not be prejudiced by application of the doctrine." Hull v. Central Pathology Service Medical Clinic, 28 Cal.App.4th 1328, 1336 (1994). Even using these factors, plaintiff is still not entitled to equitable tolling because he fails to satisfy the second factor. The court's dismissal of plaintiff's first federal action was due to plaintiff's failure to understand misjoinder and failure to comply with the Federal Rules of Civil Procedure. These failures were not outside plaintiff's control.
A review of several California cases applying the Bollinger rule is helpful here. In Tannhauser v. Adams, 31 Cal.2d 169, 177 (1947), the plaintiff filed an action to quiet title. The suit was later dismissed for want of prosecution. Six months later, the plaintiff filed a motion to set aside the order, which was denied. Thereafter, the plaintiff filed an untimely second action. The California Supreme Court concluded that the plaintiff was not entitled to equitable tolling under Bollinger, because the first action was not diligently pursued, and the first action was dismissed due to the plaintiff's own error. Id. at 177-78.
Later, in Wood, 20 Cal.3d 353 (1977), the plaintiff filed suit against corporate defendants. The Superior Court dismissed the action because the plaintiff had failed to timely serve the named defendants. Elling Corp. v. Superior Court, 48 Cal.App.3d 89 (1975). The plaintiff then brought a second action in Superior Court, naming the same defendants and requesting the same relief. In holding that the first action did not toll the statute of limitations, the California Supreme Court stated that when the failure to comply with provisions regarding timely service and prosecution of claims "operate to bring about a dismissal, the applicability of the pertinent statute of limitations is restored as if no action had been brought." Wood, 20 Cal.3d at 359. Here, as in Wood, plaintiff's first action was dismissed without prejudice because he failed to cure the deficiencies, i.e., misjoinder, as ordered by the court.
Also, in Hull, 28 Cal.App.4th 1328 (1994), the plaintiff brought a medical malpractice action in state court. She sought leave to amend, which was denied, and then filed a new action in state court alleging the same cause of action she brought in her first suit, and adding another claim. The California Court of Appeal concluded that the second suit was barred by the statute of limitations because the plaintiff had not diligently pursued the claims asserted in the second action, and, due to the plaintiff's own failure to comply with the civil rules, the plaintiff failed to properly amend her complaint in the first action. Id. at 1336.
Finally, in Hu v. Silgan Containers Corp., 70 Cal.App.4th 1261, 1270-71 (1996), the plaintiff brought a timely action against her employer for discrimination, but failed to pay the filing fee. After the statute of limitations had expired, the court voided the filing based on the plaintiff's failure to pay. Thereafter, the plaintiff paid the filing fee and late charges, but the Superior Court granted judgment on the pleadings to the employer because it had no jurisdiction to "reinstate" the action. The California Court of Appeal rejected the plaintiff's argument for equitable tolling, making a distinction between cases in which a plaintiff chooses between several different forums in filing his first suit, and cases in which a plaintiff files a defective first action. Id. at 1270-71. The state appellate court applied Bollinger, and concluded that because the plaintiff failed to demonstrate dilatory actions on the part of defendants, or error on the part of the Superior Court, the plaintiff was not entitled to equitable tolling.
Thus, applying California case law, plaintiff is not entitled to equitable tolling. Plaintiff did not allege, and the court has not found, that defendants engaged in any dilatory tactics. In addition, the Ninth Circuit Court of Appeal affirmed plaintiff's dismissal in Sandoval v. Tilton, No. 08-865 JSW, supporting the fact that the dismissal of plaintiff's first federal action was not in error. Plaintiff's failure to comply with the court's order in Sandoval v. Tilton, No. 08-865 JSW, combined with the lack of error on the court's part and lack of dilatory tactics on defendants' part, do not satisfy the elements required to equitably toll the statute of limitations. See, e.g., Marasovic v. Contra Costa County Adult Protective Services, No. 06-15579, 269 Fed.Appx. 758, at **1 (9th Cir. March 12, 2008) (unpublished memorandum disposition) (affirming dismissal of Section 1983 action because the pro se plaintiff did not "diligently pursue her initial action against the defendants"); Dawkins v. Woodford, No. 09-1053 JLS (POR), 2012 WL 554371, at *4-5 (S.D. Cal. filed Feb. 21, 2012) (unpublished) (concluding pro se prisoner was not entitled to equitable tolling during the pendency of his previous federal actions which were dismissed for failing to timely serve defendants); Easley v. County of El Dorado, No. 08-1432 MCE KJN, 2010 WL 4569137, at *15 (E.D. Cal. filed Nov. 3, 2010) (unpublished) (rejecting pro se prisoner's request for equitable tolling as unreasonable and lacking in good faith when his first complaint was filed in federal court and later dismissed due to plaintiff's own failure to file an amended complaint), aff'd by 478 Fed.Appx. 447 (9th Cir. 2012) (unpublished memorandum disposition); Diggs v. Williams, No. CIV S-05-1168 DFL GGH P, 2006 WL 1627887, at *3 (E.D. Cal. June 8, 2006) (unpublished) (finding pro se prisoner's complaint untimely and stating that "California courts have declined to find equitable tolling in cases where the plaintiff's own conduct delayed the prosecution of his previous action."); see also Retail Clerks Union Local 648, AFL-CIO v. Hub Pharmacy, Inc., 707 F.2d 1030, 1036 (9th Cir. 1983) (interpreting third factor of the doctrine of equitable tolling to require that plaintiff must act reasonably and in good faith regarding the filing of the first claim and the later claim).
Accordingly, plaintiff's complaint is untimely. Because the court committed clear error in its initial decision denying defendants' motion to dismiss, defendants' motion for reconsideration is GRANTED. See School Dist. No. 1J, 5 F.3d at 1263; Civil L.R. 7-9(b)(3).
III. CONCLUSION
Defendants' motion for leave to file a motion for reconsideration is GRANTED. The court VACATES its June 11, 2013, order denying defendants' motion to dismiss. Defendants' motion to dismiss is GRANTED. The Clerk shall terminate all pending motions as moot and close the file.
IT IS SO ORDERED.