United States District Court, W.D. Washington
November 19, 2014
AARON HAHN, Plaintiff,
DOUG WADDINGTON, SCOTT RUSSELL, AND ROBERT MARTIN, Defendants
Noted For: December 12, 2014.
Aaron Hahn, Plaintiff, Pro se, WALLA WALLA, WA.
For Doug Waddington, Scott Russell, Robert Martin, Defendants: Brian James Considine, ATTORNEY GENERAL'S OFFICE (40116-OLY), OLYMPIA, WA.
REPORT AND RECOMMENDATION
Karen L. Strombom, United States Magistrate Judge.
In his complaint plaintiff Aaron Hahn alleges that defendants were deliberately indifferent to his mental health when they sent him to the Washington State Penitentiary and that they failed to protect him from an inmate to inmate assault after his transfer to that facility. Dkt. 19, p. 13. Defendants filed a motion to dismiss and one of the arguments raised is that the statute of limitations precludes consideration of the action. Dkt. 28. The Court has reviewed the record and finds that the statute of limitations prevents consideration of Mr. Hahn's claims. Further, Mr. Hahn fails to show that he is entitled to equitable tolling.
Defendants move to dismiss arguing that Washington State's three year statute of limitations precludes consideration of the case. Dkt. 28, pp. 4-5. Defendants also argue lack of personal participation and failure to state a claim. Dkt. 28, pp. 5-11. The named defendants are the former and current Superintendents of the Washington Corrections Center, Doug Waddington and Scott Russell, and a Classification Counselor, Robert Martin. Dkt. 19, p. 4.
Mr. Hahn responded to the motion to dismiss arguing that his action is not time barred because he filed it in a timely manner in the United States District Court for the Eastern District of Washington on April 26, 2013, three years to the day after he was assaulted by inmate Dennis Repp. Dkt. 30.
The undersigned concludes that dismissal based on a running of the statute of limitation is proper in this case, even through plaintiff argues that he is entitled to equitable tolling. The Court recognizes that equitable tolling cannot generally be decided at the motion to dismiss stage. See Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995); Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993). However, in this case, even if the Court assumes every fact that plaintiff sets forth as true, and even if the Court considers the evidence in a light most favorable to the plaintiff, dismissal is proper because plaintiff does not meet Washington's strict requirements for equitable tolling.
Plaintiff states that he has a long history of mental illness and spent time in and out of mental health hospitals " throughout his life." Dkt. 19, p. 7. Mr. Hahn arrived at the Washington State Corrections Center in December of 2009, and saw his Classification Counselor around December 18, 2009. Dkt. 19, pp, 7-8. Mr. Hahn provides proof that after he was classified he sent defendant Martin an e-mail stating that he could not go to Walla Walla and that he would explain why when he saw Mr. Martin again. Dkt. 19, p. 8, See also Exhibit 2 to Complaint, Dkt. 19, pp. 18-20. In later e-mails plaintiff complained that he needed to be separated from inmates named Mike Armstrong, Andrew White, and Jeremiah Anderson. Dkt. 19, pp. 19-20.
On February 14, 2010, Mr. Hahn was transferred to the Washington State Penitentiary and on April 26, 2010, he was attacked by inmate Dennis Repp. Dkt. 19, pp. 21-24. Plaintiff injuries required medical treatment including stitches to close a wound over the bridge of his nose. Dkt 19, pp. 25-28. Prison officials at Walla Walla placed Mr. Hahn in administrative segregation for protective reasons and to review his housing. Dkt. 19, p. 41. Mr. Hahn waited over two years, until December 6, 2012, to file a grievance about the April 26, 2010 assault. Dkt. 19, p. 56. The prison found his grievances were not filed within the time frames set forth by the Washington State Department of Corrections. Dkt. 19, p. 61. Defendants did not brief the issue of failure to exhaust administrative remedies in their motion to dismiss and the undersigned will not address this issue further.
In his response to defendants' motion to dismiss Mr. Hahn states that he filed a timely complaint on or before April 26, 2013, in the United States District Court for the Eastern District of Washington under cause number 2:13-cv-05051EFS. Dkt. 30, p. 1. Plaintiff states that in June of 2013, the court ordered him to either amend his complaint or voluntarily dismiss the action and that ultimately his action was dismissed on or about September 19, 2013, because it was filed in the wrong district. Dkt. 30, p. 2. Plaintiff filed this action on January 15, 2014, over three years and eight months after he was assaulted on April 26, 2010, and nearly four months after the United States District Court for the Eastern District of Washington had dismissed his action. Dkt. 1.
Because the Civil Rights Act does not contain its own statute of limitations the " appropriate statute of limitations for a 42 U.S.C. § 1983 claim is the forum state's statute of limitations for tort actions." Wilson v. Garcia, 471 U.S. 261, 269, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). " In Washington, that would be three years." Joshua v. Newell, 871 F.2d 884, 886 (9th Cir.1989) (citing RCW 4.16.080(2)). The first step in the analysis is to determine when the cause of action accrued and the statute of limitations began to run. Accrual is a matter of federal law and a federal claim accrues when plaintiff knows or has reason to know of the injury which is the basis of the action." Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991) (citations and internal quotations omitted); see also Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007); Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009); Lukovsky v. City of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008); Canatella v. Van De Kamp, 486 F.3d 1128, 1133 (9th Cir. 2007); cf. S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1289-93 (9th Cir. 2006). Plaintiff knew of the assault the day he was assaulted, April 26, 2010. Dkt. 19, p. 9, ¶ 29. Accordingly, plaintiff had until April 26, 2013, to file his claim in this Court and he did not file his claim until January 15, 2014. Dkt. 1. From the face of the complaint it is clear that the action is barred by the statute of limitations.
Defendants raise their statute of limitation defense in a motion to dismiss. Dkt. 29. " A statute of limitation defense may be raised by a motion to dismiss if the running of the limitation period is apparent on the face of the complaint." Vaughan v. Grijalva, 927 F.2d 476, 479 (9th Cir. 1991); see also Estate of Blue v. County of Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997).
Plaintiff raises the issue of equitable tolling in his response to the motion to dismiss arguing that his filing of an action in the United States District Court for the Eastern District of Washington tolls the running of the statute of limitation. Dkt. 30. Normally, the question of equitable tolling cannot be decided on a motion to dismiss because the question involves matters outside of the pleadings. See Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995); Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993). However, even if the undersigned considers plaintiff's argument and liberally construes his pleading his argument fails.
When a court applies a state's statute of limitations it also uses all applicable tolling provisions from that state's law. See Wallace v. Kato, 549 U.S. 384, 394, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007); Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989); Bd. of Regents v. Tomanio, 446 U.S. 478, 484-85, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); arose."); Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009); Lucchesi v. Bar-O Boys Ranch, 353 F.3d 691, 694 (9th Cir. 2003). In Washington State the doctrine of equitable tolling is applied " sparingly" and a person claiming equitable tolling has the burden of proving bad faith, deception, or false assurances by defendants and the exercise of diligence in pursuing the claim by plaintiff. Trotzer v. Vig, 149 Wash.App. 594, 607, 203 P.3d 1056 (2009); Benyaminov v. City of Bellevue, 144 Wash.App. 755, 760, 183 P.3d 1127 (2008); State v. Duvall, 86 Wash.App. 871, 875, 940 P.2d 671 (1997) (" Courts typically permit equitable tolling to occur only sparingly, and should not extend it to a " garden variety claim of excusable neglect." ( quoting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435 (1990)).
Even if the undersigned goes beyond the pleadings and considers Mr. Hahn's equitable tolling argument Mr. Hahn fails to show that he is entitled to equitable tolling. He does not argue that defendants misled him or deceived him about the time frame for filing his action or that they made any false assurances about his ability to file an action. Dkt. 30. Thus, Mr. Hahn fails to carry his burden of proving bad faith, deception or false assurances by the defendants. Mr. Hahn's failure to prove bad faith, deception or false assurances by the defendants is fatal to his equitable tolling argument. Accordingly, the undersigned recommends granting defendants' motion to dismiss this action based on the running of the statute of limitations. In light of this recommendation the undersigned does not consider the other arguments raised by defendants' in their motion to dismiss.
Mr. Hahn's complaint contains all facts needed to determine that the action is barred by the applicable statute of limitations and therefore, his complaint is subject to dismissal for failure to state a claim. He also fails carry his burden of proof to show an entitlement to equitable tolling.
Pursuant to 28 U.S.C. § 636(b) (1) and Rule 72(b) of the Federal Rules of Civil Procedure, 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 appeal. Thomas v Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on December 12, 2014, as noted in the caption.