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MGD 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Marco Ochoa-Gonzalez, 

Plaintiff, 

v. 

United States Immigration and Customs 

Enforcement, et al., 

Defendants. 

No. CV 16-00363-PHX-DGC (DMF) 

ORDER 

Plaintiff Marco Ochoa-Gonzalez, who is currently confined in the Rivers 

Correctional Institution in Winton, North Carolina, brought this civil rights action 

pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 

U.S. 388 (1971). (Doc. 18.) Defendant Sardinas has filed a Motion to Dismiss pursuant 

to Federal Rule of Civil Procedure 12(b)(6), claiming that Plaintiff’s claim against him is 

barred by the applicable statute of limitations. (Doc. 39.) Plaintiff was informed of his 

rights and obligations to respond, and he opposes the Motion. (Docs. 40, 44.) The Court 

will grant the Motion to Dismiss and terminate this action. 

I. Background

 Plaintiff’s original Complaint was filed on February 3, 2016.1

 (Doc. 1.) On 

screening pursuant to 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated a 

 

1

 Although Plaintiff’s original Complaint was actually filed in this Court on 

February 8, 2016, Plaintiff signed and dated it on February 3, 2016. Under the prison 

mailbox rule, a legal document is deemed “filed” when handed by the prisoner to a prison 
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claim against Defendant Barbara Brown, an officer with the Drug Enforcement 

Administration (DEA), and an unnamed agent of United States Immigration and Customs 

Enforcement (ICE).2

 (Doc. 7 at 4.) On August 15, 2016, Plaintiff filed his First 

Amended Complaint (FAC), which was nearly identical to the original Complaint, but 

substituted Barbara Hopkins for Barbara Brown.3

 (Doc. 18.) On January 17, 2017, 

Plaintiff moved to substitute Eugenio Sardinas for the unknown ICE agent. (Doc. 33.) 

The Court granted the motion, allowed the substitution of Sardinas, and ordered Sardinas 

to answer the FAC. (Doc. 36.) 

 In his FAC, Plaintiff asserts one count of excessive force by an officer and alleges 

that on January 24, 2014, officers of ICE and the DEA used excessive force while he was 

under arrest. (Doc. 18 at 3.) Plaintiff claims that after he was arrested, his hands and feet 

were cuffed and he was placed in a van. (Id.) While in the van, Plaintiff needed to use 

the restroom and exited the van. (Id.) When he exited the van, “they” started beating 

him, he went down, and “they” kicked him all over his body until they saw Plaintiff was 

bleeding and not moving. (Id.) Plaintiff did not try to hit back or run. (Id.) Plaintiff has 

suffered pain ever since and is confined to a wheelchair due to the incident. (Id.) 

II. Motion to Dismiss Legal Standard

 A Rule 12(b)(6) motion tests the legal sufficiency of a claim. Navarro v. Block, 

250 F.3d 729, 732 (9th Cir. 2001). In deciding a Rule 12(b)(6) motion, the court takes all 

allegations of material fact as true and construes them in the light most favorable to the 

 

official for mailing, and that date is determined by the date the prisoner signs the 

document rather the date it is filed with the clerk of court. See Douglas v. Noelle, 567 

F.3d 1103, 1107 (9th Cir. 2009) (applying the prison mailbox rule articulated in Houston 

v. Lack, 487 U.S. 266, 270–71 (1988), to § 1983 lawsuits by pro se prisoners). Therefore, 

February 3, 2016 is the date Plaintiff’s Complaint was filed. 

2

 The Court directed service on Brown, but not on the unnamed ICE agent, and 

permitted Plaintiff to use the discovery process to obtain the ICE agent’s name and to 

amend his Complaint to name the agent. (Doc. 7 at 4.) 

3

 Hopkins was subsequently dismissed from this action based on statute of 

limitation grounds. (Doc. 41.) 
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nonmoving party. Marcus v. Holder, 574 F.3d 1182, 1184 (9th Cir. 2009). The court 

will “‘presume that general allegations embrace those specific facts that are necessary to 

support the claim.’” Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) 

(quotation omitted). Where the plaintiff is a pro se prisoner, the court must construe the 

pleadings liberally and afford the petitioner the benefit of any doubt. Hebbe v. Pliler, 627 

F.3d 338, 342 (9th Cir. 2010). 

 When the statute of limitations forms the basis of a motion to dismiss for failure to 

state a claim, the motion can be granted if the running of the statute is apparent on the 

face of the complaint, and “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); see also TwoRivers v. Lewis, 174 

F.3d 987, 991 (9th Cir. 1999). Although courts will not normally look beyond the 

pleadings in resolving a Rule 12(b)(6) motion, Lee v. City of Los Angeles, 250 F.3d 668, 

688 (9th Cir.2001), a “court may consider material that the plaintiff properly submitted as 

part of the complaint or, even if not physically attached to the complaint, material that is 

not contended to be inauthentic and that is necessarily relied upon by the plaintiff’s 

complaint.” Id. The court may also consider matters of public record, including 

pleadings, orders, and other papers filed with the court. Mack v. S. Bay Beer Distrib., 

798 F.2d 1279, 1282 (9th Cir.1986), abrogated on other grounds by Astoria Fed. Savings 

and Loan Ass’n v. Solimino, 501 U.S. 104 (1991). 

 The forum state’s personal injury statute of limitations and any tolling provisions 

applies to Bivens claims. See Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991); 

Papa v. United States, 281 F.3d 1004, 1009 (9th Cir. 2002); Butler v. Nat’l Cmty. 

Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014). In Arizona, the forum state in 

this case, the statute of limitations for personal injury claims is two years. A.R.S. § 12-

542; Marks v. Parra, 785 F.2d 1419, 1420 (9th Cir. 1986). The statute of limitations may 

be tolled if a plaintiff is prevented from filing an action “due to sufficiently inequitable 

circumstances” or “extraordinary circumstances beyond plaintiffs’ control.” McCloud v. 
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Ariz. Dep’t of Pub. Safety, 170 P.3d 691, 696 (Ariz. Ct. App. 2007) (internal citations and 

quotations omitted). Federal law determines when a Bivens claim accrues. Papa, 281 

F.3d at 1009 (citation omitted). Such a claim accrues “when the plaintiff knows or has 

reason to know of the injury that is the basis of the cause of action.” Douglas v. Noelle, 

567 F.3d 1103, 1109 (9th Cir. 2009). 

III. Discussion 

 Defendant Sardinas argues that Plaintiff’s claim accrued on January 24, 2014 and 

expired on January 24, 2016 – before Plaintiff filed his original Complaint. (Doc. 39 at 

4.) Plaintiff did not name Sardinas as a Defendant until October 14, 2016, and Sardinas 

contends that even if the Court found that Plaintiff’s amended claim naming Sardinas 

relates back to the original Complaint, the claim would still be barred because Plaintiff 

did not file his original Complaint until February 3, 2016. (Id.) 

 Plaintiff argues in his Response that the statute of limitations should be tolled. 

(Doc.44 at 2.) Plaintiff asks the Court to consider that (1) he does not write or speak 

English and has had to depend on help from others, (2) he is not versed in the law, (3) his 

court-appointed attorney did not properly assist him in his criminal proceedings, and 

(4) he no longer has legal assistance and is not capable of making intelligent and knowing 

decisions. (Id.) Plaintiff asserts that he is confined to a wheelchair “as [a] result of the 

beat[]ing (police brutality and e[x]cess of force) inflicted by officer Sardinas and his 

fellow co-workers (arresting officer).” (Id. at 3.) 

 Plaintiff claims that Sardinas was one of the officers who used excessive force 

against him on January 24, 2014. (See Doc. 18 at 3.) Plaintiff knew or had reason to 

know of his injuries on that date and he has not presented any evidence that he did not 

become aware of his injuries until some later date. See Cabrera v. City of Huntington 

Park, 159 F.3d 374, 380-81 (9th Cir. 1998) (finding that Plaintiff had reason to know of 

the injury on an excessive force claim on the day the excessive force occurred). 

Therefore, under Arizona’s two-year statute of limitations for personal injury claims, and 

absent tolling, Plaintiff was required to file his original complaint by January 24, 2016. 
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 Plaintiff asserts a variety of potential impediments to filing a complaint, but he 

does not show how any of those potential impediments prevented him from filing a 

complaint for more than two years after he knew of the alleged use of excessive force. If 

someone with English proficiency was required to help with his Complaint, Plaintiff does 

not say that he could not obtain such help until after the expiration of the limitations 

period. Lack of legal sophistication is not an “extraordinary circumstance” warranting 

tolling of a limitations period. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 

2006) (holding that “a pro se petitioner’s lack of legal sophistication is not, by itself, an 

extraordinary circumstance warranting equitable tolling”). And Plaintiff does not explain 

how the alleged ineffective assistance of his criminal defense attorney affected this civil 

case. 

 Plaintiff signed his original Complaint on February 3, 2016, which is after the 

January 24, 2016 deadline for filing his complaint. Plaintiff’s excessive force claim 

against Sardinas is therefore barred by the statute of limitations. 

IT IS ORDERED:

 (1) The reference to the Magistrate Judge is withdrawn as to Defendant 

Sardinas’s Motion to Dismiss (Doc. 39). 

 (2) Defendant Sardinas’s Motion to Dismiss (Doc. 39) is granted, and 

Defendant Sardinas is dismissed with prejudice. 

 (3) This action is dismissed with prejudice. The Clerk of Court must enter 

judgment accordingly. 

 Dated this 2nd day of November, 2017.