United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Miranda M.
Du, United States District Judge. The action was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and LR IB 1-4. Before the court is defendants
Abigail Biggar ("Biggar"), Ken Codman
("Codman"), and Paul Lorring's
("Lorring") (collectively "defendants")
motion to dismiss (ECF No. 15). Vincent Cordova, Sr.
("plaintiff') opposed (ECF No. 20) and defendants
replied (ECF No. 21). Having reviewed the arguments set
forth, the court recommends that the motion to dismiss be
is an inmate currently in the custody of the Nevada
Department of Corrections and is housed at Ely State Prison
in Ely, Nevada. The events that give rise to this action,
however, transpired at St. Mary's Hospital in Reno,
Nevada, while plaintiff was in the custody of the Washoe
County Sheriffs Department ("WCSD") as a pretrial
detainee. Pursuant to 42 U.S.C. § 1983, plaintiff brings
a civil rights claim against WCSD, Biggar, Codman, and
complaint contains two counts of excessive force in violation
of the 14th Amendment against Biggar (Count I), Codman,
(Count II), and Lorring (Count II). (ECF No. 8.) Both counts
relate to plaintiffs attempted escape from St. Mary's
Hospital on October 20, 2013, where plaintiff alleges the
defendants used excessive force to re-apprehend him.
February 10, 2017, the District Court entered a screening
order pursuant to 28 U.S.C. § 1915, allowing plaintiff
to proceed with his excessive force claims against Biggar,
Codman, and Lorring and dismissing his claim without
prejudice against WCSD. (ECF No. 7 at 4-6.) On March 28,
2017, defendants filed a motion to dismiss this action. (ECF
No. 15.) This report and recommendation follows.
of a complaint for failure to state a claim upon which relief
may be granted is provided for in Federal Rule of Civil
Procedure 12(b)(6). The ruling is a question of law. N.
Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578,
580 (9th Cir. 1983). The court is to grant dismissal when the
complaint fails to "state a claim for relief that is
plausible on its face[, ]" BellAtl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007), or fails to
articulate a cognizable legal theory, Taylor v. Yee,
780 F.3d 928, 935 (9th Cir. 2015). When analyzing a motion
under Rule 12(b)(6), courts accept as true all well-pled
factual allegations, set aside legal conclusions, and verify
that the complaint states a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). While
detailed factual allegations are not necessary, the complaint
must offer more than "a formulaic recitation of the
elements of a cause of action, " Twombly, 550
U.S. at 555, and include sufficient facts "to give fair
notice and to enable the opposing party to defend itself
effectively, " Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). In conducting the dismissal analysis,
the complaint is construed in a light most favorable to the
plaintiff. Chubb Custom Ins. Co. v. Space Sys./Loral
Inc., 710 F.3d 946, 956 (9th Cir. 2013). Moreover, the
court takes particular care when reviewing the pleadings of a
pro se party, for a more forgiving standard applies
to litigants not represented by counsel. Hebbe v.
Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010).
move for dismissal of the complaint on the basis that
plaintiffs 14th Amendment claim is barred by the two-year
statute of limitations applicable to claims brought under 42
U.S.C. § 1983. (See ECF No. 15.)
42 U.S.C. § 1983 contains no statute of limitations,
federal courts apply the forum state's statute of
limitations for personal injury claims to determine whether a
complaint is timely filed. Johnson v. State of
California, 207 F.3d 650, 653 (9th Cir. 2000).
Therefore, in Nevada, the statute of limitations for section
1983 actions is two years. See Nev. Rev. Stat.
§ 11.190(4)(e); Perez v. Seevers, 869 F.2d 425,
426 (9th Cir. 1989), cert, denied, 493 U.S. 860
(1989). Under the applicable statute of limitations,
plaintiff had two years from the time of the alleged injury
to commence the instant suit. Id. An action is
deemed to be commenced when the complaint is filed.
Id Plaintiff alleges, and defendants agree, that his
alleged incident occurred on October 20, 2013. (See
ECF Nos. 8, 15.) The statute of limitations provided
plaintiff until October 20, 2015, to file his claim.
Plaintiff filed his complaint on June 16, 2016. (See
ECF No. 8.) Thus, plaintiff missed the deadline by nearly
response to defendants' motion to dismiss, plaintiff
fails to address the defendants' argument that his claim
is barred by the statute of limitations. (See ECF
No. 20.) In fact, plaintiff attached the State Court order
dismissing his prior action as barred by the two-year statute
of limitations. (ECF No. 20 at 7.) Therefore, based on the
applicable two-year statute of limitations, plaintiffs
alleged injuries are time-barred and defendants' motion
to dismiss should be granted. Because the court finds that
dismissal is warranted on statute of limitations grounds, the
court need not address defendants' Heck
plaintiffs claims for monetary damages for excessive force
under the 14th Amendment should be dismissed, his complaint
fails to state a claim upon which relief can be granted.
See Fed. R. Civ. P. 12(b)(6). Therefore, the court
recommends that defendants' motion to dismiss plaintiffs