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 

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 case pursuant 

to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 

(1971). Defendant Hopkins has filed a Motion to Dismiss pursuant to Federal Rule of 

Civil Procedure 12(b)(6), claiming that Plaintiff’s claims are barred by the applicable 

statute of limitations. (Doc. 25.) Plaintiff was informed of his rights and obligations to 

respond (Doc. 26), and he failed to do so. The Court will grant the Motion to Dismiss. 

I. Background

 Plaintiff’s original Complaint was filed on February 8, 2016. (Doc. 1.) On 

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

claim against Defendant Barbara Brown and an unnamed ICE officer.1

 (Doc. 7 at 4.) On 

 

1

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

permitted Plaintiff to use the discovery process to obtain the Defendant’s name and to 
- 2 - 

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 

August 15, 2016, Plaintiff filed his First Amended Complaint (“FAC”), which was nearly 

identical to the original Complaint, but substituted Defendant Barbara Hopkins for 

Barbara Brown. (Doc. 18.) 

 Plaintiff alleged that on January 24, 2014, officers of the United States 

Immigration and Customs Enforcement (“ICE”) and the Drug Enforcement 

Administration (“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 so exited 

the van. (Id.) When he exited the van, officers started beating him, he fell to the ground, 

and they kicked him all over his body. (Id.) Plaintiff did not try to hit back or run. (Id.) 

Plaintiff has suffered pain ever since and is confined to a wheelchair. (Id.) Plaintiff 

alleged that while he was being beaten, DEA Officer Hopkins was holding a gun to his 

head. (Id.) 

 On screening of the FAC, the Court directed Hopkins to answer the claim against 

her. (Doc. 19.) On October 21, 2016, Hopkins filed the Motion to Dismiss. (Doc. 25.) 

Plaintiff did not file a response.2

 

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 

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) 

 

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

2

 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.) On April 20, 2017, 

Sardinas filed a Motion to Dismiss. (Doc. 39.) Briefing is not complete on that Motion 

and the Court will address that Motion by separate Order. 
- 3 - 

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 

(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, 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). The 

forum state’s personal injury statute of limitations applies to Bivens claims. See Van 

Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991). Tolling provisions are also borrowed 

from the forum state. See Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2006), 

abrogated on other grounds by Simmons v. Himmelreich, 135 S. Ct. 1843 (2016). 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). 

Federal law, however, determines when a Bivens claim accrues. See Pesnell, 543 F.3d at 

1043. A Bivens claim accrues “when the plaintiff knows or has reason to know of the 

injury.” Safouane v. Hassett, 514 F. App’x 691, 692 (9th Cir. 2013). 

III. Discussion 

 Hopkins argues that based on the face of Plaintiff’s Complaint, the alleged events 

in which she was purportedly involved occurred on January 24, 2014. (Doc. 25 at 3.) 

Hopkins denies that she committed any of the acts alleged by Plaintiff and asserts that the 

only specific allegation against her is that she was involved in the re-apprehension of 

Plaintiff on January 24, 2014 after he left a law enforcement vehicle without permission. 

(Id., citing Doc. 18 at 3.) Hopkins argues that Plaintiff’s claims against her accrued on 

January 24, 2014, and that the statute of limitations on Plaintiff’s Bivens claims arising 

out of the alleged assault expired on January 24, 2016, two years after the date of the 

alleged assault. (Id.) Hopkins argues that because Plaintiff did not file his original 
- 4 - 

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 

Complaint until February 8, 2016, his claim against her is barred by the statute of 

limitations and the Court should dismiss the claim against her. (Id. at 3-4.) 

 Plaintiff alleges that Hopkins’s involvement in the alleged excessive force incident 

was to hold a gun to his head on January 24, 2014. (Doc. 18 at 3.) Under Arizona’s 

statute of limitations for personal injury claims, and absent tolling, Plaintiff was required 

to file his original complaint by January 24, 2016. Reading Plaintiff’s Complaint with 

the required liberality, the Court finds no basis for tolling the statute of limitations, and 

Plaintiff did not respond to the Motion or suggest any reason that the statute should be 

tolled. Plaintiff signed his original Complaint with the date of February 3, 2016, which is 

after the January 24, 2016 deadline for filing his complaint.3

 Accordingly, the Court will grant Defendant Hopkins’s Motion to Dismiss with 

prejudice. 

IT IS ORDERED:

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

Hopkins’s Motion to Dismiss (Doc. 25). 

 (2) Defendant Hopkins’s Motion to Dismiss (Doc. 25) is granted, and Hopkins 

is dismissed with prejudice. 

 Dated this 2nd day of May, 2017. 

 

3

 Under the prison mailbox rule, a legal document is deemed “filed” when handed 

by the prisoner to a prison 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).