Free Renotice motion hearing - District Court of California - California

Case 4:07-cv-03754-CW

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 PAUL T. HAMMERNESS Supervising Deputy Attorney General 3 HARRY T. (CHIP) GOWER, III (SBN 170784) Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 4 San Francisco, CA 94102-7004 Telephone: (415) 703-5500 5 Fax: (415) 703-5480 Email: [email protected] 6 7 Attorneys for Defendant Mark Headrick 8 9 10 Case No.: CV 07-03754-CW 11 12 13 14 15 16 17 18 19 20 21 22 NOTICE OF MOTION AND MOTION TO PLAINTIFF AND HIS COUNSEL OF RECORD: PLEASE TAKE NOTICE that on September 18, 2008, at 2:00 p.m., or as soon thereafter Date Action Filed: July 20, 2007 Trial Date: Not Set v. MARK HEADRICK, Defendant. ALOYSIUS L. RHODES, Plaintiff, RE- NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES Date: September 18, 2008 Time: 2:00 p.m. Place: Courtroom 2, 4th Floor 1301 Clay Street, Oakland, CA Judge: Claudia Wilken IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

23 as the matter may be heard, in Courtroom 2 of this Court, located at 1301 Clay Street, Oakland, 24 California, defendant Mark Headrick will, and hereby does, move this Court, pursuant to Rule 25 12(b)(6) of the Federal Rules of Civil Procedure, for an Order dismissing this case with 26 prejudice. 27 /// 28 ///
1 [MOTION TO DISMISS] Rhodes v. Headrick No. CV 07-03754-CW

Case 4:07-cv-03754-CW

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This Motion is made on the grounds that the Complaint fails to state a federal claim upon

2 which relief can be granted. This Motion is based upon this Notice of Motion and Motion, the 3 Memorandum of Points and Authorities filed herewith, and the pleadings, orders, memoranda, 4 exhibits and other documents already on file in this action. 5 6 7 8 MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS

Plaintiff alleges a cause of action under 42 U.S.C. section 1983 for wrongful arrest.

9 (Complaint, ¶¶ 1, 10.) Plaintiff alleges that the defendant, CHP Officer Mark Headrick, arrested 10 him on September 6, 2003. (Complaint, ¶ 10.) 11 12 1. II. STATEMENT OF ISSUES TO BE DECIDED

The Complaint fails to allege facts sufficient to state a federal claim upon which

13 relief can be granted, because the complaint is barred by the statute of limitations. 14 15 16 III. ARGUMENT

The Complaint Is Barred by the Statute of Limitations In 42 U.S.C. section 1983 actions, the federal courts borrow the state statute of

17 limitations that applies to personal injury actions. Wilson v. Garcia, 471 U.S. 261, 279-280
th 18 (1985); Silva v. Crain, 169 F.3d 608, 610 (9 Cir. 1999). At the time of Plaintiff's arrest,

19 September 6, 2003, the California general personal injury statute of limitations was two years. 20 Cal. Civ. Proc. Code § 335.1 (West 2006.) Plaintiff, then, had two years in which to file this 21 lawsuit-- that is, until September 5, 2005. Plaintiff, however, did not file this lawsuit until July 22 20, 2007, and it is barred by the statute of limitations. 23 /// 24 /// 25 /// 26 /// 27 /// 28
2 [MOTION TO DISMISS] Rhodes v. Headrick No. CV 07-03754-CW

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IV. CONCLUSION Plaintiff's federal civil rights claim is barred by the statute of limitations. Accordingly,

3 CHP Officer Mark Headrick respectfully requests that the Court grant this motion and dismiss 4 the Complaint with prejudice. 5 6 Dated: August 4, 2008 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3 [MOTION TO DISMISS] Rhodes v. Headrick No. CV 07-03754-CW
40270732.wpd

Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California PAUL T. HAMMERNESS Supervising Deputy Attorney General /s/ HARRY T. GOWER, III HARRY T. GOWER, III Deputy Attorney General Attorneys for Defendant Mark Headrick
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