Cooper v. Jones

Filing 29

ORDER signed by District Judge Kimberly J. Mueller on 2/4/16 ORDERING that Defendant is granted ten days from the date of this order in which to file and serve a response to Plaintiff's reply and the evidence attached thereto, ECF No. 28 . (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY COOPER,

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No. 2:14-cv-0453 KJM AC P

Plaintiff,
v.

ORDER

K. JONES,
Defendant.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On December 17, 2015, the magistrate judge filed findings and recommendations, which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within twenty-one days. Defendant has filed

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objections to the findings and recommendations; plaintiff has filed a reply.

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Defendant’s objections focus on whether plaintiff or defendant has the burden of pleading

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and proving that the provisions of California Code of Civil Procedure § 352.1 apply to extend by

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two years the statutory two-year limitation period for bringing the Eighth Amendment claim

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raised in this action. Defendant asserts the burden is on plaintiff to plead and prove that at the

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time his claim accrued he was serving a sentence of “less than life” in prison, and that plaintiff
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failed to meet this burden. In reply, plaintiff asserts that he is serving a sentence of twenty-five

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years to life in prison and he attaches as an exhibit a portion of a certified transcript from

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proceedings in Fresno County Superior Court during which a sentence of twenty-five years to life

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is imposed on the defendant in those proceedings, who is referred to once as Mr. Cooper in the

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transcript excerpt filed by plaintiff. The court need not resolve the merits of defendant’s

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objections at this time. Plaintiff’s evidence is sufficient to give rise to a reasonable inference that

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he has since 1980 been incarcerated on a sentence of twenty-five years to life in prison. If he was

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in fact serving a sentence of twenty-five years to life in prison when his cause of action accrued,

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he is entitled to the statutory tolling provided by § 352.1. See Martinez v. Gomez, 137 F.3d 1124,

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1126 (9th Cir. 1998). Good cause appearing, the court will convert this portion of defendant’s

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motion to a motion for summary judgment, consider the evidence tendered by plaintiff in reply to

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defendant’s objections, and grant defendant a period of ten days in which to respond to plaintiff’s

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reply and the evidence contained therein. See Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir.

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1996). Thereafter, the matter will be submitted.

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In accordance with the above, IT IS HEREBY ORDERED that defendant is granted ten

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days from the date of this order in which to file and serve a response to plaintiff’s reply and the

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evidence attached thereto, ECF No. 28.

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DATED: February 4, 2016

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UNITED STATES DISTRICT JUDGE

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