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Cardova v. Biggar

United States District Court, D. Nevada

June 5, 2017

VINCENT CORDOVA, SR., Plaintiff,
v.
ABIGAIL BIGGAR, et al, Defendants.

          REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

         This 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 granted.

         I. PROCEDURAL HISTORY

         Plaintiff 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 Lorring.

         Plaintiffs 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. (Id.)

         On 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.

         II. LEGAL STANDARDS

         Dismissal 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).

         III. DISCUSSION

         Defendants 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.)

         Since 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 eight months.

         In 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 argument.

         IV. CONCLUSION

         Because 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 ...


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