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)

Case 1:18-cv-00645-DAD-GSA Document 93 Filed 09/07/21 Page 1 of 3
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BARRY L. BROOKINS,

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No. 1:18-cv-00645-DAD-GSA (PC)

Plaintiff,
v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

RAJENDARA DWIVEDI, M.D.,
(Doc. Nos. 73, 83)
Defendant.

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Plaintiff Barry L. Brookins is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On June 10, 2021, the assigned magistrate judge issued findings and recommendations

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recommending that defendant’s motion to dismiss this case as barred by the applicable statute of

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limitations (Doc. No. 73) be granted. (Doc. No. 83.) Those findings and recommendations were

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served on the parties and contained notice that any objections were to be filed within fourteen

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(14) days after service. (Id. at 16.) On July 6, 2021 defendant filed a notice stating that plaintiff

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had failed to timely file objections and requesting that the pending findings and recommendations

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be submitted to the undersigned “without consideration of any ‘objection’ from the parties.”

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(Doc. No. 84.) On July 8, 2021, plaintiff’s objections were docketed. (Doc. No. 85.) On July 19,

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2021, defendant filed a reply to plaintiff’s objections. (Doc. No. 89.)
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Case 1:18-cv-00645-DAD-GSA Document 93 Filed 09/07/21 Page 2 of 3
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a

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de novo review of this case. Having carefully reviewed and considered the entire file, including

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plaintiff’s objections and defendant’s reply thereto, the court finds the findings and

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recommendations to be supported by the record and proper analysis.

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In his objections, plaintiff asserts in a confusing fashion 1 that this action should not be

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dismissed as barred by the statute of limitations because he was transferred in between various

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special housing units (“SHUs”) and because defendant Dr. Dwivedi had left Corcoran State

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Prison (“Corcoran”) and opened his own medical office elsewhere. (Doc. No. 85 at 2, 21.)

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Plaintiff states that due to defendant’s departure from Corcoran, plaintiff was unable to conduct

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the necessary research regarding defendant’s whereabouts because plaintiff did not have access to

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a computer in the SHU. (Id. at 2–3.) Plaintiff requests equitable tolling of the statute of

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limitations based upon these circumstances for an unspecified period of time so that this action

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may proceed as timely filed. (Id. at 3.)

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Defendant’s reply begins with a request that plaintiff’s objections not be considered

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because they were untimely. (Doc. No. 89 at 2.) Defendant then argues that plaintiff has not

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provided any legal arguments or factual support that refute the pending findings and

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recommendations. (Id. at 4–5.) Defendant further asserts that neither California’s equitable

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tolling doctrine nor any equitable tolling available for his federal claims excuse plaintiff’s failure

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to file his suit within the applicable statute of limitations. (Id. at 2–5.)

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The undersigned agrees with the magistrate judge’s determination that the statute of

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limitations had expired before plaintiff filed this action. (Doc. No. 83 at 16.) As outlined in the

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pending findings and recommendations, the statute of limitations began to run shortly after

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plaintiff’s surgery in April 2010 because plaintiff was immediately aware that there was issue

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with that surgery. (Doc. Nos. 1 at 3; 83 at 16–17.) Specifically, plaintiff alleges that when he

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awoke from surgery, he realized that a portion of his testicle appeared to have been removed

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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.
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Case 1:18-cv-00645-DAD-GSA Document 93 Filed 09/07/21 Page 3 of 3
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without his consent. (Id.) However, plaintiff did not commence this action until May 10, 2018,

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more than eight years after the actions were taken about which he complains, approximately four

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years after the running of the limitations period. (Doc. No. 1.) Thus, plaintiff’s objections

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provide no basis upon which to reject the pending findings and recommendations.

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Accordingly,

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1.

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The findings and recommendations (Doc. No. 83) issued on June 10, 2021 are
adopted;

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2.

Defendant’s motion to dismiss filed on February 8, 2021 (Doc. No. 73) is granted;

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3.

This case is dismissed as time–barred under the applicable statutes of limitations;

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and
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The Clerk of the Court is directed to close this case.

IT IS SO ORDERED.
Dated:

September 7, 2021
UNITED STATES DISTRICT JUDGE

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