1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 PABLO CHAVEZ, Case No. 1:20-cv-00801-NONE-HBK

11 Plaintiff, ORDER TO PLAINTIFF TO TAKE ACTION

TO AVOID DISMISSAL OF ACTION

12 v.

13 CAL-FIRE, MARIPOSA COUNTY, MT. 30-DAY DEADLINE

BUILLION FIRE CAMP, HOLLISTER

14 AIR ATTACK BASE, DYN CORP, AND

U.S. FOREST SERVICE,

15 Defendants. 16 17 This matter comes before the court for its initial screening following reassignment to the 18 undersigned on November 17, 2020. (See Doc. No. 8). Plaintiff Pablo Chavez (“Plaintiff” or 19 “Chavez”), while a state prisoner,1 commenced this action by filing a pro se civil rights 20 complaint under 42 U.S.C. § 1983 on June 8, 2020. (Doc. No. 1, Complaint). The Complaint 21 stems from events that occurred on October 8, 2014 while Chavez was assigned to a fire crew 22 working in Yosemite National Park before he was incarcerated. (Doc. No. 1 at 5). Upon a 23 preliminary review of the Complaint, the Court finds it fails to state a claim and, even assuming 24 it states a cognizable claim, the claim appears time barred. Before recommending dismissal of 25 this action, the Court will afford Plaintiff an opportunity to file an amended complaint, advise 26 the Court whether he wishes to stand on his Complaint or voluntarily dismiss this action. 27 1 On September 28, 2020, the Clerk updated the address of record for Plaintiff due to Plaintiff filing a 28 notice of change of address in another case. (Doc. No. 7). 1 STANDARD OF REVIEW 2 Because Plaintiff commenced this action while he was incarcerated, he is subject to the 3 Prison Litigation Reform Act, that requires, inter alia, that the court screen the complaint that 4 seeks relief against a governmental entity, its officers, or its employees under 28 U.S.C. § 1915A 5 before directing service upon any defendant. This requires the court to identify any cognizable 6 claims and dismiss any portion of the complaint that is frivolous or malicious, that fails to state a 7 claim upon which relief may be granted, or that seeks monetary relief from a defendant who is 8 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2); see also 28 U.S.C. § 9 1915(e)(2)(b)(ii) (governing actions proceeding in forma pauperis). 10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). Claims are frivolous where they are based on an indisputably meritless legal theory or 13 where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. A claim fails to state 14 a claim upon which relief may be granted if it appears that the plaintiff can prove no set of facts 15 in support of the claim that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 16 73 (1984); Palmer v. Roosevelt Lake Log Owners Ass’n, Inc., 651 F.2d 1289, 1294 (9th Cir. 17 1981). Examples of immunity that would preclude relief during screening, include, but are not 18 limited to, quasi-judicial immunity, sovereign immunity, or qualified immunity. Additionally, a 19 prisoner plaintiff may not recover monetary damages absent a showing of physical injury. See 42 20 U.S.C. § 1997e(e). In other words, to recover monetary damages, a plaintiff must allege physical 21 injury that need not be significant but must be more than de minimus, except when involving First 22 Amendment claims. Oliver v. Keller, 289 F.3d 623, 626-28 (9th Cir. 2002) (surveying other 23 circuit courts for the first time to address injury requirement for monetary damages, and agreeing 24 with the Second, Fifth, and Eleventh Circuits on Prison Litigation Reform Act’s injury 25 requirement). 26 At the screening stage, the court accepts the factual allegations in the complaint as true, 27 Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976), construes the complaint in the light 28 most favorable to the plaintiff and resolves all doubts in the plaintiff’s favor. Jenkins v. 1 McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 2 2003). The court is not required to accept as true conclusory allegations, unreasonable inferences, 3 or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 4 1981). Critical to evaluating a constitutional claim is whether it has an arguable legal and factual 5 basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. 6 A claim must be facially plausible to survive screening, which requires sufficient factual 7 detail to allow the court to reasonably infer that each named defendant is liable for the 8 misconduct alleged, Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (quotation marks 9 omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility 10 that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short 11 of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 12 572 F.3d at 969. 13 The Federal Rules of Civil Procedure require the complaint to contain “a short and plain 14 statement of the claim showing the pleader is entitled to relief. . ..” Fed. R. Civ. P. 8(a)(2). 15 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 16 of action, supported by mere conclusory statements, do not suffice,” Iqbal, 556 U.S. at 678 17 (citations omitted), and courts “are not required to indulge unwarranted inferences,” Doe I v. Wal- 18 Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 19 omitted). Finally, the Rules permit a complaint to include all related claims against a party and 20 permit joinder of all defendants alleged to be liable for the “same transaction, occurrence, or 21 series of transactions or occurrence” where “any question of law or fact common to all defendants 22 will arise in the action.” Fed. R. Civ. P. 18(a) and 20(a)(2) (emphasis added). But the Rules do 23 not permit conglomeration of unrelated claims against unrelated defendants in a single lawsuit. 24 Unrelated claims must be filed in separate lawsuits. 25 If an otherwise deficient pleading could be cured by the allegation of other facts, the pro 26 se litigant is entitled to an opportunity to amend their complaint before dismissal of the action. 27 See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Department of 28 Corr., 66 F.3d 245, 248 (9th Cir. 1995). However, it is not the role of the Court to advise a pro se 1 litigant on how to cure the defects. Such advice “would undermine district judges’ role as 2 impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 3 1131 n.13. 4 SUMMARY OF OPERATIVE PLEADING 5 The following facts set forth in the complaint are accepted as true at this stage of the 6 proceedings. Plaintiff was on a fire call cutting a fire line in Yosemite National Park fighting the 7 “Dog Rock Fire” on October 8, 2014. (Doc. No. 1 at 5). Numerous helicopters and airplanes 8 carrying fire retardant were overhead. (Id.). A “S-2T air tanker bomber collide[d] into the river 9 canyon wall.” (Id.). Debris from crash flew over Plaintiff’s head and fire “retardant splashed” 10 on him while the watched the crash which killed the pilot. (Id). Plaintiff and the other workers 11 were “pulled off the fire line” and counseled. (Id.). 12 The complaint alleges a violation of Plaintiff’s 8th Amendment rights. (Id. at 5). As a 13 result of the incident, Plaintiff claims he suffers inter alia from anxiety, P.T.S.D., depression, 14 and chronic flashbacks. (Id). As relief, Plaintiff seeks $7,400,000 for emotional distress and 15 pain and suffering. (Id. at 12.). 16 APPLICABLE LAW AND ANALYSIS 17 A. The Complaint Fails to State A Cognizable 8th Amendment Claim 18 Section 1983 allows a private citizen to sue for the deprivation of a right secured by 19 federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). To 20 state a claim under § 1983, a plaintiff must show that a defendant acting under color of state law 21 caused an alleged deprivation of a right secured by federal law. See 42 U.S.C. § 1983; Soo Park 22 v. Thompson, 851 F.3d 910, 921 (9th Cir. 2017). The plaintiff can satisfy the causation 23 requirement by showing either: (1) the defendant’s “personal involvement” in the alleged 24 deprivation or (2) a “sufficient causal connection” between the defendant’s conduct as a 25 supervisor and the alleged deprivation. See King v. Cty. of Los Angeles, 885 F.3d 548, 559 (9th 26 Cir. 2018). 27 The Court cannot discern of any constitutional violation stemming from the facts alleged 28 in the complaint—a tragic accident that occurred while multiple emergency crews were battling a 1 wildfire. Even liberally construing the complaint to allege a failure of duty of care, assuming any 2 duty of care was violated, the complaint fails to allege any casual connection between any of the 3 named defendants and an alleged breach of duty. To the extent Plaintiff seeks to recovery for his 4 anxiety, chronic flashbacks and PTSD stemming from the incident, his claim appears better 5 postured as a claim for worker’s compensation and/or disability benefits instead of a civil rights 6 claim. 7 B. Statute of Limitations Appears From Face of Complaint to Bar Action 8 The claim further appears barred by the applicable statute of limitations. The statute of 9 limitations for § 1983 actions is dictated “by the forum state’s statute of limitations for personal 10 injury actions,” which is two years in California. Whiting v. City of Cathedral City, 735 F. 11 App'x 927, 928 (9th Cir. 2018); Cal. Civ. Proc. Code § 335.1. California Code of Civil 12 Procedure § 352.1(a) provides an additional two years from when the cause of action accrues for 13 those imprisoned “for a term less than for life.” Although state law dictates the applicable 14 statute of limitations, federal law governs when a claim accrues. “Accrual is the date on which 15 the statute of limitations begins to run . . ..” Lukovsky v. City of San Francisco, 535 F.3d 1044, 16 1048 (9th Cir. 2008). “[U]nder federal law, a claim accrues when the plaintiff knows or has 17 reason to know of the injury which is the basis of the action.” Id. (internal quotation marks 18 omitted). Lest, Plaintiff argue that his claim does not accrue until he suffered PTSD, such an 19 argument has already been rejected by the courts. See Claraty v. Hall-Mills, 2019 WL 1228237 20 *3-4, Case No. 18-cv-06861-JCS (C.D. CA. 2019) (collecting cases) (finding statute of 21 limitations for claims alleging PTSD as symptom from claims arise not just when a plaintiff 22 experiences some injury and knew from exercise of reasonable diligence the cause of some 23 injury). 24 Because Plaintiff’s claims do not arise from the conditions of his confinement, the 25 mandatory tolling provision for claims subject to the Prison Litigation Reform Act would not be 26 applicable. See Brown v. Valoff, 422 F.3d 926, 942–43 (9th Cir. 2005). Thus, Plaintiff should 27 28 1 have brought a complaint within two years of the event giving rise to his claim.2 However, an 2 otherwise untimely complaint may still proceed if the plaintiff can demonstrate equitable tolling. 3 Fink v. Shedler, 192 F.3d 911, 916–17 (9th Cir. 1999). To be entitled to equitable tolling, a 4 plaintiff must “show three elements: timely notice to the defendant, lack of prejudice to the 5 defendant, and reasonable and good faith conduct by the plaintiff.” Neil through Cyprian v. 6 Park, 833 F. App'x 689, 690 (9th Cir. 2021) (internal quotations omitted.) 7 OPTIONS 8 In order to continue the prosecution of this action, Plaintiff must take one of the following 9 three steps within thirty (30) days from the date of this Order: (1) Plaintiff may file an First 10 Amended Complaint if he believes he can cure the deficiencies identified by the Court above; (2) 11 Plaintiff may file a Notice stating he intends to stand on his current complaint subject to the 12 undersigned recommending the district court dismiss for the reasons stated in this Order; or (3) 13 because no defendant has yet been served, Plaintiff may file a Notice of Voluntarily Dismissal 14 without prejudice under Federal Rule of Civil Procedure 41(a)(1). If Plaintiff fails to timely 15 respond to this Court Order, i.e. fails to perform any of the three options, the undersigned will 16 instead recommend that the district court dismiss this case as a sanction for Plaintiff’s failure to 17 comply with a court order and for failing to prosecute this action. See Local Rule 110; Fed. R. 18 Civ. P. 41(b). 19 Accordingly, it is ORDERED: 20 1. Within thirty (30) days from the date of service of this order, Plaintiff shall take 21 one of the following actions: (a) file a First Amended Complaint; (b) file a Notice stating he 22 intends to stand on his current complaint subject to the undersigned recommending the district 23 court dismiss for the reasons stated in this Order; or (3) file a Notice of Voluntarily Dismissal 24

25 2 Alternatively, even if the Court afforded Plaintiff the benefit of the mandatory tolling provisions due to his incarcerated status, the Complaint nonetheless appears time barred. Applying California’s Statute of 26 Limitations for personal injury actions and giving Plaintiff the additional two-year tolling-period for individuals imprisoned “for a term less for life,” Cal. Code Civ. Pro. § 352.1(a), Plaintiff’s claims should 27 have been brought in 2018 at the latest. Any claims predicated upon § 1983 therefore appear to be time- barred because the Complaint was not filed until June 2020. 28 1 | without prejudice under Federal Rule of Civil Procedure 41(a)(1). 2 2. If Plaintiff fails to timely comply with this Court Order or seek an extension of 3 | time to comply, the Court will recommend the district court dismiss this action for Plaintiff’s 4 | failure to comply with this Court Order and prosecute this action. 5 ° | Dated: _ November 20, 2021 Mile. Th fareh Hack 7 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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