Opinion
3:22-cv-00066-YY
03-28-2022
MICHAEL A. STEVENS, Plaintiff, v. DEA AGENT JACK WILSON, STATE OF OREGON-DEPT OF JUSTICE, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Pro se plaintiff Michael A. Stevens, who has been granted leave to proceed in forma pauperis, has filed a complaint that fails to state a claim for relief and is time-barred by the statute of limitations. Because these defects cannot be cured by amendment, the complaint should be dismissed with prejudice.
The in forma pauperis statute provides that “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines . . . the action is frivolous or . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A complaint is “frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Plaintiff alleges claims under the Fourth, Fourteenth, and Eighth Amendments pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Compl. 3, ECF 1. His claims stem from his 2018 arrest for a federal drug-related charge for which he was ultimately acquitted in September 2019. See United States v. Michael Alan Stevens, Case No. 6:17-274-MC-07, Judgment of Acquittal (September 12, 2019), ECF 575. Plaintiff alleges that federal agents arrested him without probable cause and the warrant was based on “falsified facts” and the “hearsay” of a co-defendant. Compl. 4, 7, ECF 1. He claims defendant DEA Agent Wilson “falsely claimed they found 12 lbs of meth in [his] garage” and convinced his ex-girlfriend to say he was involved. Id. at 7-8. Plaintiff alleges he was subjected to “false arrest and imprisonment” and “tossed around to every jail in and around Portland” for over a year and a half. Id. at 4-5, 7.
Plaintiff claims “this entire case destroyed me physically and mentally” and caused him to suffer ulcers and depression. Id. at 5. He alleges he was denied dental care in jail and as a result, suffered an infection, had the wrong teeth pulled, and eventually had to have all of his lower teeth pulled. Id. He claims that his incarceration also caused him to miss events in his “children's life, ” as well as family court proceedings. Id. at 4-5. Plaintiff claims, “I lost work, my reputation has been damaged, and I'm now an emotional wreck.” Id. at 5. Plaintiff “think[s] $15 million is not enough for all the lies and dishonesty portrayed by people of authority and power, ” but he would accept that amount “paid w/in 6 months of judgement.” Id.
First, plaintiff alleges no cognizable claim under the Eighth Amendment, which provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” As plaintiff makes clear in his complaint, he was never convicted of any crime.
Also, plaintiff has not articulated a plausible claim against defendant “State of Oregon-Dept of Justice.” Plaintiff alleges that federal, not state, agents arrested him in California and brought him to Oregon where he was charged in federal court. Compl. 4, ECF 1. While plaintiff asserts that he was “tossed around to every jail in and around Portland, ” id. at 7, he never claims that any of these were state-run facilities.
Plaintiff names “Frank Pagagni” in his complaint. Id. at 2. Presumably, plaintiff means Assistant United States Attorney Frank Papagni, who prosecuted his case. Plaintiff makes no specific allegations regarding AUSA Papagni. Even if plaintiff intended to name AUSA Papagni as a defendant, he has failed to allege a plausible claim against him. Every complaint must contain a short and plain statement that provides each “defendant with ‘fair notice of what the plaintiff's claim is and the grounds upon which it rests.'” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (citation omitted); see Fed.R.Civ.P. 8(a).
But perhaps most importantly, any and all claims that plaintiff asserts are time-barred. 42 U.S.C. § 1983 does not contain a specific statute of limitations. Instead, “federal courts apply the forum state's statute of limitations for personal injury actions, along with the forum state's law regarding tolling, including equitable tolling, except to the extent that any of these laws is inconsistent with federal law.” Butler v. Nat'l Cmty. Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014) (simplified). The state statute of limitations for personal injury actions also applies to Bivens actions. Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991). Thus, Oregon's two-year statute of limitations for personal injury actions, O.R.S. 12.110(1), applies to all of plaintiff's claims, whether they are asserted pursuant to § 1983 or Bivens. See Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002) (recognizing that Oregon's statute of limitations for personal injury actions, O.R.S. 12.110, applies to a § 1983 action); Rheel v. United States, No. 3:12-CV-01719-JE, 2013 WL 3929830, at *2 (D. Or. July 29, 2013) (“In Oregon, a two-year statute of limitations applies to Bivens claims.”).
Plaintiff appears to allege a Fourth Amendment claim for “false arrest or imprisonment.” See Wallace v. Kato, 549 U.S. 384, 388 (2007) (“False arrest and false imprisonment overlap; the former is a species of the latter.”). That claim accrued in 2018 “when the search was conducted and [plaintiff] was arrested.” Mills v. City of Covina, 921 F.3d 1161, 1166 (9th Cir. 2019) (finding the plaintiff had “complete and present causes of action” for his claims of false arrest and false imprisonment “when he was subjected to a search in violation of the Fourth Amendment and was arrested” and “those claims accrued at that time”). However, plaintiff did not file his complaint until January 10, 2022, long after the two-year statute of limitations expired. Thus, plaintiff's Fourth Amendment false arrest/imprisonment claim is time-barred.
Plaintiff does not allege a malicious prosecution claim, but even if he did, that claim also would be time-barred. A claim for malicious prosecution accrues when the underlying criminal prosecution has resolved in the plaintiff's favor. McDonough v. Smith, 139 S.Ct. 2149, 2156 (2019). Here, that occurred in 2019, which is again outside the two-year statute of limitations.
Finally, any Fourteenth Amendment claim that plaintiff asserts for emotional distress or lack of dental care that he suffered as a pretrial detainee suffers the same fate. Plaintiff was released from custody following his acquittal in 2019, and the two-year time frame for bringing such a claim has therefore passed.
Plaintiff claims he “recently just got a hold of certain court papers” and is “entitled to thus prolonging my right to file for the false arrest and imprisonment.” Compl. 4, ECF 1. However, “federal law determines the accrual date of § 1983 claims, ” Camarata v. Portland Cmty. Coll., No. 3: 19-CV-00738-HZ, 2019 WL 4723769, at *3 (D. Or. Sept. 26, 2019) (citing Wallace, 549 U.S. at 388), and plaintiff cites no federal authority to support his argument that the date of accrual should somehow be tolled or otherwise delayed. In fact, plaintiff has always possessed the information he needed to file his claims: he knew of the facts pertaining to any false arrest/imprisonment claim when the search was conducted and he was arrested, he knew of the facts pertaining to any malicious prosecution claim when he was acquitted, and he knew of the facts related to his conditions of his confinement as they occurred.
“A district court should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.'” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). Here, no amendment could cure the fact that plaintiff's claims stemming from his 2018 arrest and subsequent federal prosecution are time-barred. Therefore, this case should be dismissed with prejudice.
RECOMMENDATION
Because plaintiff's complaint is frivolous and fails to state a claim for relief, the case should be dismissed with prejudice under the in forma pauperis statute.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, February 25, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.