(PC) Bland v. Moffett et al
Filing
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ORDER ADOPTING 26 Findings and Recommendations and GRANTING Defendants' 20 Motion to Partially Dismiss Complaint, signed by District Judge Dale A. Drozd on 4/1/2021. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOSHUA BLAND,
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Plaintiff,
v.
D. MOFFETT, et al.,
Defendants.
No. 1:19-cv-01750-NONE-SKO (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
DEFENDANTS’ MOTION TO PARTIALLY
DISMISS COMPLAINT
(Doc. Nos. 20, 26)
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Plaintiff Joshua Bland is a state prisoner proceeding pro se and in forma pauperis in this
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civil rights action under 42 U.S.C. § 1983. This matter was referred to a United States Magistrate
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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On September 18, 2020, the defendants filed a motion to dismiss defendant Moffett from
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this action on the ground that the claim brought against him is barred by the applicable statute of
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limitations. (Doc. No. 20.) Plaintiff filed an opposition to defendants’ motion on September 29,
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2020, to which defendants filed a reply on October 7, 2020. (Doc. Nos. 23, 24.) In support of
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their reply, defendants concurrently filed a request for judicial notice. (Doc. No. 25.)
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On February 16, 2021, the assigned magistrate judge issued findings and
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recommendations, recommending that defendants’ motion to dismiss be granted and that
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Defendant Moffett and the claim brought against him be dismissed from this action with
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prejudice. (Doc. No. 26.) As requested by defendants, the magistrate judge took judicial notice
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of the fact that plaintiff delivered his complaint in this case to prison authorities for forwarding to
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the court on December 4, 2019. (Id. at 4.) Based on this fact, and on the fact that the incident
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giving rise to plaintiff’s claim against defendant Moffett allegedly occurred on November 23,
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2015, the magistrate judge found that plaintiff had failed to timely file his complaint within the
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four years afforded by the applicable statute of limitations and California Code of Civil Procedure
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§ 352.1. (Id. at 3-5.) The magistrate judge, therefore, concluded that plaintiff’s claim against
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defendant Moffett is time-barred. (Id.) The findings and recommendations were served on
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plaintiff and provided him 21 days to file objections. (Id. at 5.) Plaintiff filed objections on
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March 12, 2021. (Doc. No. 28.)
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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 the entire file, including plaintiff’s
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objections, the court finds the findings and recommendations to be supported by the record and
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proper analysis. The court agrees with the magistrate judge’s finding that plaintiff’s claim
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brought against defendant Moffett is time-barred. Plaintiff’s objections do not meaningfully
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dispute this finding. Rather, plaintiff contends that the statute of limitations for the bringing of
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§ 1983 actions is unconstitutional. (See Doc. No. 28 at 1.) Plaintiff’s contention and argument in
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support thereof are frivolous.
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Accordingly,
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1. The findings and recommendations issued on February 16, 2021 (Doc. No. 26) are
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adopted in full;
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2. Defendants’ motion to partially dismiss the complaint (Doc. No. 20) is granted;
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3. Defendant Moffett and the claim brought against him in this action are dismissed with
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prejudice; and,
4. This action is referred back to the assigned magistrate judge for further proceedings.
IT IS SO ORDERED.
Dated:
April 1, 2021
UNITED STATES DISTRICT JUDGE
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