(PC) Bland v. Moffett et al

Filing 32

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA BLAND, 12 13 14 15 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) 16 17 Plaintiff Joshua Bland is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action under 42 U.S.C. § 1983. This matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On September 18, 2020, the defendants filed a motion to dismiss defendant Moffett from 21 this action on the ground that the claim brought against him is barred by the applicable statute of 22 limitations. (Doc. No. 20.) Plaintiff filed an opposition to defendants’ motion on September 29, 23 2020, to which defendants filed a reply on October 7, 2020. (Doc. Nos. 23, 24.) In support of 24 their reply, defendants concurrently filed a request for judicial notice. (Doc. No. 25.) 25 On February 16, 2021, the assigned magistrate judge issued findings and 26 recommendations, recommending that defendants’ motion to dismiss be granted and that 27 Defendant Moffett and the claim brought against him be dismissed from this action with 28 prejudice. (Doc. No. 26.) As requested by defendants, the magistrate judge took judicial notice 1 of the fact that plaintiff delivered his complaint in this case to prison authorities for forwarding to 2 the court on December 4, 2019. (Id. at 4.) Based on this fact, and on the fact that the incident 3 giving rise to plaintiff’s claim against defendant Moffett allegedly occurred on November 23, 4 2015, the magistrate judge found that plaintiff had failed to timely file his complaint within the 5 four years afforded by the applicable statute of limitations and California Code of Civil Procedure 6 § 352.1. (Id. at 3-5.) The magistrate judge, therefore, concluded that plaintiff’s claim against 7 defendant Moffett is time-barred. (Id.) The findings and recommendations were served on 8 plaintiff and provided him 21 days to file objections. (Id. at 5.) Plaintiff filed objections on 9 March 12, 2021. (Doc. No. 28.) 10 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 11 de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s 12 objections, the court finds the findings and recommendations to be supported by the record and 13 proper analysis. The court agrees with the magistrate judge’s finding that plaintiff’s claim 14 brought against defendant Moffett is time-barred. Plaintiff’s objections do not meaningfully 15 dispute this finding. Rather, plaintiff contends that the statute of limitations for the bringing of 16 § 1983 actions is unconstitutional. (See Doc. No. 28 at 1.) Plaintiff’s contention and argument in 17 support thereof are frivolous. 18 Accordingly, 19 1. The findings and recommendations issued on February 16, 2021 (Doc. No. 26) are 20 adopted in full; 21 2. Defendants’ motion to partially dismiss the complaint (Doc. No. 20) is granted; 22 3. Defendant Moffett and the claim brought against him in this action are dismissed with 23 24 25 26 27 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 28 2

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