Harris v. German et al

Filing 17

ORDER Requiring Further Response to Order to Show Cause signed by Magistrate Judge Gary S. Austin on 3/22/2017. 15-day deadline. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEVONTE B. HARRIS,
Plaintiff,

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ORDER REQUIRING FURTHER RESPONSE
TO ORDER TO SHOW CAUSE
(ECF No. 15.)

v.

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1:15-cv-01462-GSA-PC

HUMBERTO GERMAN, et al.,
Defendants.

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FIFTEEN-DAY DEADLINE TO RESPOND

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Devonte B. Harris (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on September 28, 2015. (ECF No. 1.)

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On December 18, 2015, Plaintiff consented to Magistrate Judge jurisdiction in this

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action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF

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No. 7.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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I.

BACKGROUND

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On March 14, 2016, Plaintiff filed the First Amended Complaint as a matter of course.

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Fed. R. Civ. P. 15(a). (ECF No. 8.) On February 24, 2017, the court issued an order to show
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cause, requiring Plaintiff to file a response within thirty days showing cause why his claims

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should not be dismissed as barred by the statute of limitations. (ECF No. 15.) The court found

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that it appears on the face of the First Amended Complaint that Plaintiff filed this case after the

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tolling of the four-year statute of limitations.

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On March 16, 2017, Plaintiff filed a response to the order, claiming that the statute of

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limitations for him was tolled until September 29, 2011, while he completed the mandatory

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exhaustion process. Plaintiff contends that because he filed this case on September 28, 2015 --

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less than four years after September 29, 2011 -- his claims are not barred by the statute of

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limitations.

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II.

DISCUSSION
Plaintiff has responded to the court’s order under the assumption that the four-year

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statute of limitations applies to him.

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Plaintiff’s claims may be less than four years. It is apparent on the face of the First Amended

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Complaint that Plaintiff’s claims in this action are barred if the statute of limitations applicable

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to him is less than four years. Therefore, Plaintiff must provide additional information before

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the court can make a determination.1

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However, the applicable statute of limitations for

If § 352.1 of California Code of Civil Procedure does not apply to Plaintiff, he is subject
to a two-year statute of limitations. Section 352.1 provides, in pertinent part:
(a) If a person entitled to bring an action, . . . is, at the time the
cause of action accrued, imprisoned on a criminal charge, or in
execution under the sentence of a criminal court for a term less
than for life, the time of that disability is not a part of the time
limited for the commencement of the action, not to exceed two
years.

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Under § 352.1, if Plaintiff is serving a life term, § 352.1 is not applicable to him, and he

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is not eligible for tolling as a prisoner. Therefore, Plaintiff shall be required to inform the court

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whether he is serving a life term or a term less than life.

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The federal court borrows the two-year California statute of limitations, Fink v. Shedler, 192
F.3d 911, 914 (9th Cir. 1999)); see Jones v. Blanas, 393 F.3d 918, 927 (2004), and if applicable, two more years
are tolled under § 352.1 for prisoners, resulting in a four-year statute of limitations, Cal. Code Civ. P. § 352.1.
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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Within fifteen days of the date of service of this order, Plaintiff is required to

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respond in writing to the court, indicating whether he is serving a life term or a

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term less than life; and

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2.

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Plaintiff’s failure to comply with this order shall result in the dismissal of this
case.

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IT IS SO ORDERED.
Dated:

March 22, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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