Spence v. Stambaugh et al

Filing 79

ORDER ADOPTING 61 FINDINGS AND RECOMMENDATIONS in full signed by Senior Judge William B. Shubb on 04/18/19 DISMISSING Claim One of the Second Amended Complaint, and putative defendants Sacramento County Sheriff Scott R. Jones, Nurse "L," N.J. #344, Pane #496, Cunningham #789, and Gallinano #267 without prejudice. This case is referred back to the assigned magistrate judge for all further pretrial proceedings. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GERALD SPENCE,

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No. 2:14-cv-1170 WBS AC P

Plaintiff,
v.

ORDER

STAMBAUGH, et al.,
Defendants.

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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 pursuant to

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

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On January 11, 2018, the magistrate judge filed findings and recommendations herein

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

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and recommendations were to be filed within fourteen days. Plaintiff and defendants both filed

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objections to the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the entire file, and

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the objections of both plaintiff and defendants, the court finds the findings and recommendations

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to be supported by the record and by proper analysis, subject to the following additional

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considerations.

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Effectively, the applicable statute of limitations in prisoner civil rights cases is not two

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years as argued by defendants. “For actions under 42 U.S.C. § 1983, courts apply the forum

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state’s statute of limitations for personal injury actions, along with the forum state’s law regarding

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tolling, including equitable tolling, except to the extent any of these laws is inconsistent with

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federal law.” Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). In California, the statute of

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limitations for personal injury actions is two years. See Cal. Code Civ. Proc. § 335.1; Maldonado

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v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004). However, this limitations period is statutorily

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tolled for a period of two years for a person who is, “at the time the cause of action accrued,

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imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term

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less than for life.” See Cal. Code Civ. Proc. § 352.1(a); Johnson v. State of California, 207 F.3d

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650, 654 (9th Cir. 2000). Additionally, in California, “the applicable statute of limitations must

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be tolled while a prisoner completes the mandatory [administrative] exhaustion process.” Brown

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v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005).

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Moreover, allowing this case to proceed on the Second Amended Complaint, as construed

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by the magistrate judge, is not futile on the grounds proffered by defendant. In computing the

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time within which service must be made pursuant to Cal. Code Civ. Proc. § 583.210, time is

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excluded during the periods when the “validity of service was the subject of litigation by the

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parties,” as in the instant case for a period of eighteen months, and service “was impossible,

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impracticable, or futile due to causes beyond the plaintiff’s control,” as in the instant case during

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the periods attributable to the court’s workload and attendant delays. See Cal. Code Civ. Proc. §

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583.240(c), (d); see also ECF No. 61 at 4.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed January 11, 2018 are adopted in full;

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2. Claim One of the Second Amended Complaint, and putative defendants Sacramento

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County Sheriff Scott R. Jones, Nurse “L,” N.J. #344, Pane #496, Cunningham #789, and

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Gallinano #267, are dismissed from this action without prejudice; and
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3. This case is referred back to the assigned magistrate judge for all further pretrial

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proceedings.

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Dated: April 18, 2019

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