United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SUSAN MAE POLK,

Plaintiff,

 v.

DEPUTY JAMES CAVIN, et al., 

Defendants. _______________________________ 

 

)

)

)

)

)

)

)

)

)

No. C 08-1483 MMC (PR) 

ORDER GRANTING MOTION TO

DISMISS BY DEFENDANTS CAVIN,

CHERTKOW AND RUPF;

DIRECTIONS TO CLERK

(Docket No. 25)

On March 17, 2008, plaintiff, a California prisoner incarcerated at the Central

California Women’s Facility in Chowchilla, California (“CCWF”), and proceeding pro se,

filed the above-titled civil rights action under 42 U.S.C. § 1983. Thereafter, by order filed

April 30, 2009, the Court found the allegations in plaintiff’s third amended complaint

(“TAC”), when liberally construed, state the following cognizable claims for relief: (1) use of

excessive force by Contra Costa County (“CCC”) Sheriff’s Deputy James Cavin (“Deputy

Cavin”) when plaintiff was in the custody of the CCC Sheriff’s Department; (2) supervisorial

liability based on the failure of CCC Sheriff’s Deputy Lt. Matt Chertkow (“Lt. Chertkow”) to

properly train Cavin and respond to Cavin’s use of force; (3) supervisorial liability based on

CCC Sheriff Warren Rupf’s (“Sheriff Rupf”) implementation of a policy that led to Cavin’s

use of excessive force; and (4) the denial of access to the courts by various prison officials at

CCWF. By that same order, the Court directed defendants to file a motion for summary

judgment or other dispositive motion with respect to plaintiff’s cognizable claims. 

Case 3:08-cv-01483-MMC Document 73 Filed 03/18/10 Page 1 of 8
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

The CCWF defendants have filed a separate motion to dismiss on the ground of

plaintiff’s failure to exhaust administrative remedies with respect to the claims asserted

against the CCWF defendants in the TAC. (Docket No. 44.) The motion has been fully

briefed and is addressed in a separate order filed concurrently herewith.

2

As the instant motion pertains solely to the claims asserted against defendants Cavin,

Chertkow and Rupf, only the facts alleged by plaintiff in the TAC with respect to those

claims are set forth herein.

2

Now pending before the Court is the motion, filed by CCC defendants Deputy Cavin,

Lt. Chertkow and Sheriff Rupf to dismiss the claims against them on the ground that plaintiff

failed to exhaust administrative remedies prior to filing suit or, alternatively, that plaintiff’s

claims are barred by the statute of limitations.1

 Plaintiff has opposed the motion and

defendants have filed a reply. 

BACKGROUND2

In the TAC, plaintiff alleges the following:

On August 29, 2003, when plaintiff was on her way to court to submit a “Faretta”

motion, Deputy Cavin asked plaintiff if she was going to represent herself and told her she

“better not talk in court.” (TAC at 12:¶6-13:¶7.) When, prior to presenting her motion,

plaintiff was conferring through a plexi-glass window with two representatives from the

Public Defender’s office, Cavin interrupted, shouting “I told you not to talk in court,” and

then hit plaintiff twice on her left shoulder and chest. (TAC at 15:¶¶12-13.) Lt. Chertkow

was watching through the plexi-glass but did nothing to intervene. (TAC at 15:¶16.)

Cavin then removed plaintiff from the courtroom into the holding area and hit plaintiff

on her elbow with a “blackjack,” causing her to collapse on the floor in excruciating pain. 

(TAC at 16:¶¶18-20.) Plaintiff cried out to a female deputy that her elbow was broken. 

(TAC at 16:¶21.) Before plaintiff was taken to the hospital, Lt. Chertkow was extremely

hostile toward her, refused to allow her to file a complaint against Deputy Cavin, and

threatened to charge her with battery against a police officer. (TAC at 18:¶31.) Later that

afternoon, plaintiff was taken to a local hospital where an X-ray confirmed her elbow was

broken. (TAC at 18:¶¶32-33.)

Case 3:08-cv-01483-MMC Document 73 Filed 03/18/10 Page 2 of 8
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

On March 17, 2008, plaintiff filed her original complaint in the instant action. On

January 9, 2009, she filed her TAC, in which she alleges that her constitutional right to due

process was violated by Deputy Cavin’s use of excessive force against her, Lt. Chertkow’s

failure to properly train Cavin and respond to Cavin’s use of force, and Sheriff Rupf’s

implementation of a policy of placing “the most aggressive and violent officers in charge of

the most vulnerable” inmates. (TAC at 30-31:¶5, 31:¶9, 32:¶34 .) 

DISCUSSION

Defendants move to dismiss the claims against them on the ground that plaintiff failed

to exhaust her administrative remedies prior to filing suit, or, alternatively, that such claims

are barred by the statute of limitations. For the reasons discussed below, the Court will grant

the motion to dismiss the claims as time-barred.

A. Standard of Review

A motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal

Rules of Civil Procedure should be granted if the complaint does not proffer “enough facts to

state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007). A defense of statute of limitations may be raised by a motion to

dismiss if the running of the relevant statute of limitations is apparent on the face of the

complaint. Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484 n.1 (9th Cir.1987). 

When a motion to dismiss is based on the running of a statute of limitations, the motion can

be granted “only if the assertions of the complaint, read with the required liberality, would

not permit the plaintiff to prove that the statute was tolled.” Jablon v. Dean Witter & Co.,

614 F.2d 677, 682 (9th Cir. 1980) (internal citation omitted).

In considering a motion to dismiss, the court must construe the complaint in the light

most favorable to the plaintiff and accept all factual allegations as true. See Cahill v. Liberty

Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Federal courts are particularly liberal in

construing allegations made in pro se civil rights complaints. See Thompson v. Davis, 295

F.3d 890, 895 (9th Cir. 2002). In ruling on a Rule 12(b)(6) motion, the court may not

consider any material outside the complaint but may consider exhibits attached thereto. See

Case 3:08-cv-01483-MMC Document 73 Filed 03/18/10 Page 3 of 8
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

Prior to January 1, 2003, the limitations period was one year. See Maldonado, 370

F.3d at 954 (citing Cal. Code Civ. Proc. § 340(3)).

4

Additionally, plaintiff alleges she was aware on that date that her elbow had been

broken.

4

Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 925 (9th Cir. 2001); Fed.

R. Civ. P. 10(c) (treating exhibits attached to complaint as part of complaint for purposes of

12(b)(6) motion). 

B. Analysis

Defendants argue plaintiff’s claims against them are time-barred because the

complaint was not filed in compliance with the applicable statute of limitations. Section

1983 does not contain its own limitations period. See Elliott v. City of Union City, 25 F.3d

800, 802 (9th Cir. 1994). Rather, the appropriate period is that of the forum state’s statute of

limitations for personal injury torts. See Wilson v. Garcia, 471 U.S. 261, 276 (1985). In the

event the state has multiple statutes of limitations for different torts, federal courts

considering claims brought pursuant to § 1983 borrow the general or residual statute for

personal injury actions. See Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999). 

Effective January 1, 2003, California’s general residual statute of limitations for

personal injury actions is two years. See Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir.

2004) (citing Cal. Code Civ. Proc. § 335.1).3

 Additionally, a federal court must give effect to

a state’s tolling provisions. See Hardin v. Straub, 490 U.S. 536, 543-44 (1989). In

California, incarceration of the plaintiff is a disability that tolls the running of the statutory

period for a maximum of two years. See Cal. Civ. Proc. Code § 352.1. 

Under federal law, a claim accrues when the plaintiff knows or has reason to know of

the injury that forms the basis of the action. See TwoRivers v. Lewis, 174 F.3d 987, 991-92

(9th Cir. 1999); Elliott, 25 F.3d at 802. Here, the injury that forms the basis of the instant

action is Cavin’s use of excessive force against plaintiff. Because plaintiff knew of said

injury on August 29, 2003,4

 such date is the date on which her claim accrued. Consequently,

had plaintiff remained continuously incarcerated for at least two years thereafter, plaintiff,

Case 3:08-cv-01483-MMC Document 73 Filed 03/18/10 Page 4 of 8
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

under California law, would have had at most four years from the date on which her claim

accrued in which to commence her action against defendants (two years under Cal. Code Civ.

Proc. § 335.1 and an additional two years under Cal. Code Civ. Proc. § 352.1). Thus,

plaintiff would have been required to file her original complaint in the instant action no later

than August 29, 2007. See Sain v. City of Bend, 309 F.3d 1134 at 1136-37 (9th Cir. 2002)

(holding federal action containing federal cause of action commences when complaint filed). 

Defendants argue, however, that the period of statutory tolling under § 352.1 ended,

and time under the statute of limitations began to run again, when plaintiff’s disability of

imprisonment ended due to her release from custody on bail on September 15, 2004;

defendants further argue tolling was not reinstated when plaintiff was arrested and

reincarcerated on April 10, 2005. Defendants maintain, therefore, that once plaintiff was

released from custody she was required to commence her action against them within the twoyear period afforded by § 335.1, i.e., by September 15, 2006. Plaintiff did not commence her

action, however, until she filed her original complaint in the instant action on March 17,

2008. 

In opposition, plaintiff contends the tolling continued even after her release because

bail is a form of ongoing custody for purposes of § 352.1. Additionally, she argues that even

if the statutory time began to run upon her release on bail on September 15, 2004, tolling was

reinstated when she was reincarcerated on April 10, 2005 on the same criminal charges that

led to her original arrest and incarceration.

The Court finds plaintiff’s arguments unpersuasive. While the disability of

imprisonment is triggered by a plaintiff’s arrest and incarceration, see Elliott, 25 F.3d at 802-

03, such disability ends when the plaintiff is released from physical custody. See Boag v.

Chief of Police, 669 F.2d 587, 589 (9th Cir. 1982) (construing Oregon tolling provision

similar to California’s and holding tolling ceased upon prisoner’s release on parole);

Coronado v. Gilbertson, No. 01-3602 TEH (PR), 2002 WL 1483843, *2 (N.D. Cal. 2002)

(holding tolling period under California statute ended when plaintiff released on bail);

Deutch v. Hoffman, 165 Cal. App. 3d 152, 166 (1984) (holding time under statute of

Case 3:08-cv-01483-MMC Document 73 Filed 03/18/10 Page 5 of 8
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

limitations not tolled during period prisoner was on parole). Moreover, plaintiff’s subsequent

reincarnation does not reinstate tolling under § 352.1, because that section tolls the statutory

time only during the continuance of the disability that existed at the time the cause of action

arose. 

See Cal. Code Civ. Proc. § 352.1 (providing prisoner entitled to statutory tolling if

imprisoned “at the time the cause of action accrued”); see also Boag, 669 F.2d at 589

(holding subsequent reincarceration does not reinstate prior disability of imprisonment for

purposes of statutory tolling). Consequently, the Court concludes that, based on the

applicable California statutes, plaintiff was required to commence her action by no later than

September 15, 2006.

Plaintiff further argues that even if she was not entitled to statutory tolling after her

release, she is entitled to invoke the doctrine of equitable estoppel to prevent dismissal of her

claims as time-barred. The doctrine of equitable estoppel may serve to bar application of the

statute of limitations as a defense where a plaintiff who knows of her cause of action

reasonably relies on the defendant’s statements or conduct in failing to bring suit. Sitt v.

Williams, 919 F.2d 516, 522 (9th Cir. 1990). In California, a defendant may be equitably

estopped from asserting the statute of limitations as a defense if the plaintiff was prevented

from timely filing a claim as a result of duress caused by the defendant during the applicable

limitations period. See Ateeq v. Najar, 15 Cal. App. 4th 1351, 1357 (1993) (finding

defendant equitably estopped from asserting statute of limitations as defense where

defendant’s repeated threats of deportation caused plaintiff to delay filing suit). In order for

equitable estoppel to apply, a plaintiff must show she was unable to file a timely claim as a

result of her “actual and reasonable reliance” on the defendants’ conduct or representations

during the applicable limitations period. Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176

(9th Cir. 2000). 

In support of her equitable estoppel argument, plaintiff maintains, based on the

allegations in her TAC, that she could not file her claims because (1) after she was assaulted

by Cavin on August 29, 2003, she was intimidated by defendants’ hostility toward her; (2) 

Case 3:08-cv-01483-MMC Document 73 Filed 03/18/10 Page 6 of 8
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

after her criminal case was assigned in August 2005 to Judge Laurel Lindebaum Brady, for

whom defendant Chertkow’s wife is a clerk, plaintiff was threatened by defendants to keep

quiet about what they had done to her and was denied access to her legal materials; and (3)

after plaintiff was transferred to CCWF in February 2007, the intimidation continued when

she was denied access to legal materials and the law library upon her arrival, and has been

repeatedly told to stop her legal efforts.

The facts alleged by plaintiff do not support her assertion that defendants are equitably

estopped from asserting the statute of limitations defense because she was prevented from

timely bringing her claims against defendants as a result of defendants’ conduct or

representations made to her during the applicable limitations period. Specifically, even if the

Court assumes defendants’ actions prevented plaintiff from filing her complaint while she

was in defendants’ custody between August 29, 2003 (the date on which she alleges she was

assaulted) and September 15, 2004 (the date on which she was released on bail), plaintiff

subsequently was out of custody for close to seven months, i.e., until April 10, 2005, and she

has made no allegation concerning any conduct or representations by defendants during that

period that would have prevented her from filing her complaint. Further, even if the Court

assumes defendants’ actions starting in August 2005 prevented plaintiff from filing her

complaint thereafter, plaintiff nonetheless had at least three months prior thereto to timely

file a complaint following her reincarceration in April 2005. Lastly, because the Court has

found the limitations period expired on September 14, 2006, the alleged actions taken by

prison officials at CCWF following plaintiff’s transfer to such facility in February 2007

could not have prevented plaintiff from filing a timely action. 

Based on the above, the Court finds plaintiff was required to file her claims against

defendants Cavin, Chertkow and Rupf by September 15, 2006, but did not do so until

March 17, 2008. Further, defendants are not equitably estopped from raising the statute of

Case 3:08-cv-01483-MMC Document 73 Filed 03/18/10 Page 7 of 8
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

In light of such findings, the Court does not reach defendants’ alternative argument

that plaintiff has failed to exhaust her administrative remedies with respect to the claims

against them.

8

limitations as a defense.5 Accordingly, defendants’ motion to dismiss the claims against

them as time-barred will be granted.

CONCLUSION

For the foregoing reasons, the motion of defendants Cavin, Chertkow and Rupf to

dismiss the claims against them as time-barred is hereby GRANTED. Upon the filing,

concurrently herewith, of the Court’s separate order granting the motion to dismiss filed by

defendants Gibson and Roberts, the Clerk shall enter judgment in favor of all defendants and

close the file. 

This order terminates Docket No. 25.

 IT IS SO ORDERED.

DATED: March 18, 2010 _________________________

MAXINE M. CHESNEY

United States District Judge 

Case 3:08-cv-01483-MMC Document 73 Filed 03/18/10 Page 8 of 8