Don Craig Buchanan Spence v. Leroy D Baca et al

Filing 10

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Judge Cormac J. Carney. Pursuant to 28 U.S.C. § 636, the Court has reviewed the complaint, records on file, and the Report and Recommendation of the magistrat e judge 7 . Further, the Court has engaged in a de novo review of those portions of the Report to which Plaintiff has objected. The Court accepts the findings and recommendation of the magistrate judge. IT IS ORDERED that the complaint is dismissed with prejudice. (See Order for Further Details) (kl)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

NO. CV 15-4108-CJC (AGR)

17

)
)
)
)
)
)
)
)
)
)
)
)

18

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

12

DON CRAIG BUCHANAN
SPENCE,

13

Plaintiff,

14

v.

15
16

LEROY BACA, et al.,
Defendants.

ORDER ACCEPTING FINDINGS
AND RECOMMENDATION OF
UNITED STATES MAGISTRATE
JUDGE

19

records on file, and the Report and Recommendation of the magistrate judge.

20

Further, the Court has engaged in a de novo review of those portions of the

21

Report to which Plaintiff has objected. The Court accepts the findings and

22

recommendation of the magistrate judge.

23

The magistrate judge recommended dismissal based on expiration of the

24

statute of limitations. The latest action alleged by Plaintiff occurred on August 13,

25

2009. (Report at 3.) At that point, Plaintiff was aware of the facts underlying his

26

claim and injury. Federal law governs when a claim accrues. See Wallace v.

27

Kato, 549 U.S. 384, 387-88, 391, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007) (“The

28

cause of action accrues even though the full extent of the injury is not known or

1

predictable.”) (citation and quotation marks omitted); see also Canatella v. Van

2

De Kamp, 486 F.3d 1128, 1133 (9th Cir. 2007) (“a claim accrues when the

3

plaintiff knows or has reason to know of the injury which is the basis of the

4

action”) (citation and quotation marks omitted).

5

Petitioner argues that the claim did not begin to accrue until the Magistrate

6

Judge’s legal findings in a Report and Recommendation in Petitioner’s habeas

7

action in Case No. 13-4193-CJC (AGR). (Objections at 4-5.) Petitioner is

8

incorrect. The claim “accrues upon awareness of the actual injury . . ., not when

9

the plaintiff suspects a legal wrong.” Lukovsky v. City and County of San

10
11

Francisco, 535 F.3d 1044, 1049 (9th Cir. 2008).
Petition argues that Nordstrom v. Ryan, 762 F.3d 903 (9th Cir. 2014)

12

supports his argument. (Objections at 5.) In Nordstrom, the plaintiff was on

13

death row in Arizona. He filed a civil rights complaint against Department of

14

Corrections officials and a specific officer, “who allegedly read his legal mail. * * *

15

He alleges that the defendants’ conduct violates various constitutional rights,

16

including the Sixth Amendment right to counsel.” Id. at 906. The reading of the

17

mail allegedly occurred on May 2, 2011. Id. at 907. The district court dismissed

18

the complaint for failure to state a claim. Id. at 907-908. The Ninth Circuit

19

reversed, finding that the plaintiff had stated a claim of a violation of his Sixth

20

Amendment right to counsel. Id. at 911, 912. Nordstrom is not on point. The

21

court did not address the statute of limitations.

22

Plaintiff’s remaining objections are without merit.

23

IT IS ORDERED that the complaint is dismissed with prejudice.

24
25
26

DATED: July 16, 2015

CORMAC J. CARNEY
United States District Judge

27
28

2