Demond Mimms v. Gail Lewis et al

Filing 87

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Dolly M. Gee for Report and Recommendation (Issued), 83 . IT IS HEREBY ORDERED THAT: (1) for the reasons stated in the Dismissal Order, the spe cified claims and defendants in the Original Complaint are dismissed; (2) the Request for Judicial Notice is granted; (3) the Motion to Dismiss is granted to the extent it seeks dismissal of the Second Amended Complaint as time-barred; (4) the Summary Judgment Motion is denied; (5) the Second Amended Complaint is dismissed without leave to amend and this action is dismissed with prejudice; and (6) the Clerk shall enter judgment accordingly. (dml)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

DEMOND MIMMS,

12

Case No. CV 12-10769 DMG(JC)
Plaintiff,

13

v.

14

GAIL LEWIS, WARDEN, et al.,

15
16

ORDER ACCEPTING FINDINGS,
CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

Defendants.

17
18

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Original Complaint,

19 the First Amended Complaint, the currently operative Second Amended
20 Complaint, the Order of the United States Magistrate Judge screening and
21 dismissing claims and defendants in the Original Complaint with leave to amend
22 (“Dismissal Order”), all documents filed in connection with the Motion to Dismiss
23 filed by Defendants (“Motion to Dismiss”) (including the Request for Judicial
24 Notice) and the Motion for Summary Judgment filed by Plaintiff (“Summary
25 Judgment Motion”), and all of the records herein, including the attached Report
26 and Recommendation of United States Magistrate Judge (“Report and
27 Recommendation”) and Plaintiff’s Objections to the Report and Recommendation
28 (“Objections”). The Court has further made a de novo

1 determination of those portions of the Report and Recommendation to which
2 objection is made.
3

As explained in the Report and Recommendation, the statute of limitations

4 for Plaintiff’s claims accrued no later than February 11, 1999 and, even allowing
5 for two years of statutory tolling based upon plaintiff’s imprisonment/service of a
6 criminal sentence, expired by February 11, 2002. In his Objections, Plaintiff
7 argues that he is entitled to equitable tolling based upon events in 2004, 2006, and
8 2009. (Objections at 2). The statute of limitations had already expired by that
9 point, however, and such post-expiration events could not toll the limitations
10 period. Cf. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.) (state habeas
11 petition filed after statute of limitations ended cannot toll the limitation period),
12 cert. denied, 540 U.S. 924 (2003). Accordingly, the Court concurs with and
13 accepts the findings, conclusions, and recommendations of the United States
14 Magistrate Judge (including the Dismissal Order which is incorporated therein and
15 with which this Court agrees) and overrules the Objections.
16

IT IS HEREBY ORDERED THAT: (1) for the reasons stated in the

17 Dismissal Order, the specified claims and defendants in the Original Complaint are
18 dismissed; (2) the Request for Judicial Notice is granted; (3) the Motion to Dismiss
19 is granted to the extent it seeks dismissal of the Second Amended Complaint as
20 time-barred; (4) the Summary Judgment Motion is denied; (5) the Second
21 Amended Complaint is dismissed without leave to amend and this action is
22 dismissed with prejudice; and (6) the Clerk shall enter judgment accordingly.
23

IT IS FURTHER ORDERED that the Clerk serve copies of this Order and

24 the Report and Recommendation on Plaintiff and counsel for Defendants.
25
26
27
28

IT IS SO ORDERED
DATED: September 20, 2016 ________________________________________
DOLLY M. GEE
UNITED STATES DISTRICT JUDGE

2