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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEVONTE B. HARRIS, Plaintiff, 12 ORDER REQUIRING FURTHER RESPONSE TO ORDER TO SHOW CAUSE (ECF No. 15.) v. 13 14 1:15-cv-01462-GSA-PC HUMBERTO GERMAN, et al., Defendants. 15 FIFTEEN-DAY DEADLINE TO RESPOND 16 17 18 Devonte B. Harris (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 20 commencing this action on September 28, 2015. (ECF No. 1.) 21 On December 18, 2015, Plaintiff consented to Magistrate Judge jurisdiction in this 22 action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF 23 No. 7.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of 24 California, the undersigned shall conduct any and all proceedings in the case until such time as 25 reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 26 I. BACKGROUND 27 On March 14, 2016, Plaintiff filed the First Amended Complaint as a matter of course. 28 Fed. R. Civ. P. 15(a). (ECF No. 8.) On February 24, 2017, the court issued an order to show 1 1 cause, requiring Plaintiff to file a response within thirty days showing cause why his claims 2 should not be dismissed as barred by the statute of limitations. (ECF No. 15.) The court found 3 that it appears on the face of the First Amended Complaint that Plaintiff filed this case after the 4 tolling of the four-year statute of limitations. 5 On March 16, 2017, Plaintiff filed a response to the order, claiming that the statute of 6 limitations for him was tolled until September 29, 2011, while he completed the mandatory 7 exhaustion process. Plaintiff contends that because he filed this case on September 28, 2015 -- 8 less than four years after September 29, 2011 -- his claims are not barred by the statute of 9 limitations. 10 11 II. DISCUSSION Plaintiff has responded to the court’s order under the assumption that the four-year 12 statute of limitations applies to him. 13 Plaintiff’s claims may be less than four years. It is apparent on the face of the First Amended 14 Complaint that Plaintiff’s claims in this action are barred if the statute of limitations applicable 15 to him is less than four years. Therefore, Plaintiff must provide additional information before 16 the court can make a determination.1 17 18 19 20 21 22 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. 23 Under § 352.1, if Plaintiff is serving a life term, § 352.1 is not applicable to him, and he 24 is not eligible for tolling as a prisoner. Therefore, Plaintiff shall be required to inform the court 25 whether he is serving a life term or a term less than life. 26 27 1 28 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. 2 1 III. CONCLUSION 2 Based on the foregoing, IT IS HEREBY ORDERED that: 3 1. Within fifteen days of the date of service of this order, Plaintiff is required to 4 respond in writing to the court, indicating whether he is serving a life term or a 5 term less than life; and 6 2. 7 Plaintiff’s failure to comply with this order shall result in the dismissal of this case. 8 9 10 11 IT IS SO ORDERED. Dated: March 22, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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