Chavez v. California Department of Corrections and Rehabilitation, et al.

Filing 11

ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/29/2016 VACATING the 4/14/2016 findings and recommendations 6 . Plaintiff must SHOW CAUSE within 21 days why his claim against defendant Granadoz arising from his use of pepper spray against plaintiff on 2/14/2010 should not be dismissed as time-barred. Plaintiff's failure to show cause within 21 days will result in a recommendation that the claim described above be dismissed as time-barred. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO CHAVEZ,

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Plaintiff,

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No. 2:16-cv-0520 WBS CKD P

v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §

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1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §

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636(b)(1).
On April 14, 2016, the court recommended that plaintiff’s complaint be dismissed and this

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case be closed. This recommendation was based in part on the fact that some of the claims

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presented in plaintiff’s complaint were already before the court in 2:11-cv-1015 WBS CKD P.

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That case has now been closed with one claim being dismissed without prejudice: a claim against

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defendant Granadoz for a violation of the Eighth Amendment concerning Granadoz’s use of

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pepper spray against plaintiff. While plaintiff asserts that claim in the complaint filed in this

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action, it appears that claim is now time-barred.1

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. The court’s April 14, 2016 findings and recommendations are vacated.

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2. Plaintiff must show cause within 21 days why his claim against defendant Granadoz

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arising from his use of pepper spray against plaintiff on February 14, 2010 should not be

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dismissed as time-barred.
3. Plaintiff’s failure to show cause within 21 days will result in a recommendation that the

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claim described above be dismissed as time-barred.
Dated: June 29, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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chav0520.14(a)

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As plaintiff has been previously informed, the limitations period applicable to § 1983 claims is
two years. Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004). Further, for prisoners
incarcerated on a sentence of less than life imprisonment, the limitations period is tolled for two
years. Jones v. Blanas, 393 F.3d 918, 927-28 (9th Cir. 2004). Plaintiff’s Eighth Amendment
claim against defendant Granadoz arises from events occurring on February 14, 2010. Plaintiff’s
complaint was received by the court on March 10, 2016.

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