Brookins v. Dwivedi et al

Filing 93

ORDER ADOPTING 83 Findings and Recommendations signed by District Judge Dale A. Drozd on 9/7/2021. CASE CLOSED. (Sant Agata, S)

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Case 1:18-cv-00645-DAD-GSA Document 93 Filed 09/07/21 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY L. BROOKINS, 12 13 14 15 No. 1:18-cv-00645-DAD-GSA (PC) Plaintiff, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RAJENDARA DWIVEDI, M.D., (Doc. Nos. 73, 83) Defendant. 16 17 Plaintiff Barry L. Brookins is a state prisoner proceeding pro se and in forma pauperis 18 with this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 10, 2021, the assigned magistrate judge issued findings and recommendations 21 recommending that defendant’s motion to dismiss this case as barred by the applicable statute of 22 limitations (Doc. No. 73) be granted. (Doc. No. 83.) Those findings and recommendations were 23 served on the parties and contained notice that any objections were to be filed within fourteen 24 (14) days after service. (Id. at 16.) On July 6, 2021 defendant filed a notice stating that plaintiff 25 had failed to timely file objections and requesting that the pending findings and recommendations 26 be submitted to the undersigned “without consideration of any ‘objection’ from the parties.” 27 (Doc. No. 84.) On July 8, 2021, plaintiff’s objections were docketed. (Doc. No. 85.) On July 19, 28 2021, defendant filed a reply to plaintiff’s objections. (Doc. No. 89.) 1 Case 1:18-cv-00645-DAD-GSA Document 93 Filed 09/07/21 Page 2 of 3 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 2 de novo review of this case. Having carefully reviewed and considered the entire file, including 3 plaintiff’s objections and defendant’s reply thereto, the court finds the findings and 4 recommendations to be supported by the record and proper analysis. 5 In his objections, plaintiff asserts in a confusing fashion 1 that this action should not be 6 dismissed as barred by the statute of limitations because he was transferred in between various 7 special housing units (“SHUs”) and because defendant Dr. Dwivedi had left Corcoran State 8 Prison (“Corcoran”) and opened his own medical office elsewhere. (Doc. No. 85 at 2, 21.) 9 Plaintiff states that due to defendant’s departure from Corcoran, plaintiff was unable to conduct 10 the necessary research regarding defendant’s whereabouts because plaintiff did not have access to 11 a computer in the SHU. (Id. at 2–3.) Plaintiff requests equitable tolling of the statute of 12 limitations based upon these circumstances for an unspecified period of time so that this action 13 may proceed as timely filed. (Id. at 3.) 14 Defendant’s reply begins with a request that plaintiff’s objections not be considered 15 because they were untimely. (Doc. No. 89 at 2.) Defendant then argues that plaintiff has not 16 provided any legal arguments or factual support that refute the pending findings and 17 recommendations. (Id. at 4–5.) Defendant further asserts that neither California’s equitable 18 tolling doctrine nor any equitable tolling available for his federal claims excuse plaintiff’s failure 19 to file his suit within the applicable statute of limitations. (Id. at 2–5.) 20 The undersigned agrees with the magistrate judge’s determination that the statute of 21 limitations had expired before plaintiff filed this action. (Doc. No. 83 at 16.) As outlined in the 22 pending findings and recommendations, the statute of limitations began to run shortly after 23 plaintiff’s surgery in April 2010 because plaintiff was immediately aware that there was issue 24 with that surgery. (Doc. Nos. 1 at 3; 83 at 16–17.) Specifically, plaintiff alleges that when he 25 awoke from surgery, he realized that a portion of his testicle appeared to have been removed 26 1 27 28 Plaintiff’s objections also include various unexplained factual recitations and quotations, which appear to be from case law and/or various statutes. (See, e.g., id. at 3–14.) The court reviewed these sections of the objections but does not summarize them here due to their difficult-to-discern nature. 2 Case 1:18-cv-00645-DAD-GSA Document 93 Filed 09/07/21 Page 3 of 3 1 without his consent. (Id.) However, plaintiff did not commence this action until May 10, 2018, 2 more than eight years after the actions were taken about which he complains, approximately four 3 years after the running of the limitations period. (Doc. No. 1.) Thus, plaintiff’s objections 4 provide no basis upon which to reject the pending findings and recommendations. 5 Accordingly, 6 1. 7 The findings and recommendations (Doc. No. 83) issued on June 10, 2021 are adopted; 8 2. Defendant’s motion to dismiss filed on February 8, 2021 (Doc. No. 73) is granted; 9 3. This case is dismissed as time–barred under the applicable statutes of limitations; 10 11 12 13 and 4. The Clerk of the Court is directed to close this case. IT IS SO ORDERED. Dated: September 7, 2021 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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