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MacY v. Howard

United States District Court, Ninth Circuit

October 11, 2013

MARK MARION MACY, a/k/a MARK MARION MAYKOPET, Plaintiff,
v.
DAN HOWARD, SEAN LIND, GREG BOWER, BARRY McHUGH, Defendants.

MEMORANDUM DECISION AND ORDER

RONALD E. BUSH, Magistrate Judge.

On May 30, 2013, Plaintiff Mark Marion Macy, a prisoner incarcerated in Montana, filed his Complaint in the United States District Court for the District of Montana, which transferred the case to this Court. The Court then reviewed the Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A. Because the Court "has the authority to exercise its discretion by raising the statute of limitations sua sponte, " Herbst v. Cool, 260 F.3d 1039, 1042 n.3 (9th Cir. 2001), the Court gave Plaintiff an opportunity to explain why his Complaint is not barred by the statute of limitations. ( See Initial Review Order, Dkt. 15, at 3.) Plaintiff has since filed a brief arguing that he is entitled to equitable tolling of the statute of limitations and to equitable estoppel. ( See Plaintiff's Brief, Dkt. 17.)

Plaintiff, the only party appearing in this case, has consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case.[1] See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. ( See also Dkt. 11.) Having reviewed the record, and otherwise being fully informed, the Court enters the following Order dismissing Plaintiff's Complaint with prejudice as untimely.

BACKGROUND

Plaintiff alleges that on February 7, 2011, his car was being pursued by police officers in Idaho. (Compl., Dkt. 2, at 3.) Plaintiff claims that as he turned his car around to try to drive away from the police car, one of the officers drove the police car into the front passenger side of Plaintiff's car. Plaintiff continued to drive away. ( Id. ) He states that "[a]s Plaintiff drove forward and away from the police vehicle the officer unloaded a clip from a.45 caliber pistol into the passengers [sic] side of Plaintiff's vehicle, injuring the Plaintiff and killing his wife in the passengers [sic] seat." ( Id. )

Plaintiff claims that once he got out of his car, the officers did not help his dying wife but instead "kicked Plaintiff onto his stomach." ( Id. at 4.) According to Plaintiff, the police also filed false reports about the incident. ( Id. )

Plaintiff brought this action, under 42 U.S.C. § 1983, against the two police officers and two county prosecutors.

DISCUSSION

As the Court explained in its Initial Review Order, Idaho's two-year statue of limitations for personal injury claims applies to Plaintiff's case. See Idaho Code § 5-219; Wilson v. Garcia, 471 U.S. 261, 278-80 (1985), superseded by statute on other grounds as recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004).

1. Accrual of Plaintiff's Claims

A claim under § 1983 accrues, and the statute of limitations begins to run, when the plaintiff knows, or should know, of the injury that is the basis of the cause of action. Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996). Plaintiff's wife died, and Plaintiff himself was injured, on February 7, 2011. Thus, the limitations period for his claims of wrongful death and battery began to run on that date.

Plaintiff argues, however, that the statute of limitations did not begin to run until July 30, 2011, when he learned that the police officers involved in the shooting would not be criminally charged with the death of his wife. (Dkt. 17 at 1.) Plaintiff also claims that he did not discover his own injury-being kicked by one of the officers-until he saw the videotape of the incident in September 2012. He states that with his concern for his wife, he did not realize what had happened to him on the day of the incident. ( Id. at 2.)

However, under federal law, Plaintiff's claim accrued when he had reason to know of his injury. It does not depend on whether the officers were charged with his wife's death or when a particular piece of evidence surfaced. Plaintiff was a witness to the incident, and therefore would have known immediately that he turned his car turned away from the officers. That police later said he turned into the police car does not affect what Plaintiff saw at the moment the accident happened. Thus, on the day of the incident Plaintiff had all the information needed to file a lawsuit regarding his wife's death.

Further, the important date for Plaintiff's claim of being kicked is not when Plaintiff actually knew of his injury, but when he should have known of that injury. See Kimes, 84 F.3d at 1128. Plaintiff's concern for his wife at the time of the shooting is certainly understandable, but the Court concludes that ...


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