Robben v. El Dorado County et al

Filing 25

ORDER signed by Magistrate Judge Kendall J. Newman on 9/25/2017 DENYING 23 Motion for Extension of Time. Within 14 days from the date of this order, plaintiff to file an amended complaint or a request to voluntarily dismiss this action without prejudice. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TODD ROBBEN,

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Plaintiff,

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No. 2:16-cv-2697 JAM KJN P

v.

ORDER

EL DORADO COUNTY, et al.,

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Defendants.

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By order filed June 8, 2017, plaintiff’s complaint was dismissed and thirty days leave to

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file an amended complaint was granted. On June 26, 2017, plaintiff was granted a sixty day

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extension of time. On July 25, 2017, plaintiff was granted an additional thirty days in which to

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file an amended complaint, and cautioned that no further extensions of time would be granted.

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Thirty days from that date have now expired, and plaintiff has not filed an amended complaint.

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However, on August 25, 2017, plaintiff filed a third request for extension of time.

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Plaintiff claims he filed a request for medical records from the Sacramento Jail over two months

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ago, but has not received the records.1 (ECF No. 23 at 1.) Plaintiff claims he needs the medical

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records in order to amend his complaint to provide dates, names, and procedures.

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Plaintiff suggests the court could issue an order requiring the Sacramento County Sheriff to
release plaintiff’s medical records. (ECF No. 23 at 2.) However, plaintiff is advised that this
court cannot propound discovery on behalf of litigants. Moreover, this court has no authority or
jurisdiction because there is no operative complaint on file.
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Despite filing his complaint in 2016, plaintiff now claims that he did not seek copies of his

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medical records until recently, and appears to allege he does not have sufficient facts without

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such medical records to file an “accurate” amended complaint.2 Plaintiff is advised that Rule

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41(b) of the Federal Rules of Civil Procedure provides:

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Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or
to comply with these rules or a court order, a defendant may move
to dismiss the action or any claim against it. Unless the dismissal
order states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule--except one for lack of
jurisdiction, improper venue, or failure to join a party under Rule
19--operates as an adjudication on the merits.

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Id.

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Plaintiff is required to diligently prosecute this action. Plaintiff has been provided

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numerous opportunities to amend his complaint, yet continues to fail to do so. Therefore,

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plaintiff’s motion for extension of time is denied. Plaintiff shall file his amended complaint

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within fourteen days from the date of this order. Failure to file an amended complaint will result

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in the dismissal of this action based on his failure to diligently prosecute this action and his failure

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to comply with the court’s order that he file an amended complaint.

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A district court must construe a pro se pleading “liberally” to determine if it states a claim and,
prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity
to cure them. See Lopez, 203 F.3d at 1130-31. While detailed factual allegations are not
required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678
(quoting Bell Atlantic Corp., 550 U.S. at 570).
A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. The plausibility
standard is not akin to a “probability requirement,” but it asks for
more than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility
and plausibility of entitlement to relief.
Ashcroft, 556 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations, and are
not entitled to the assumption of truth. Id. at 1950.
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In the alternative, because it appears that plaintiff is not prepared to file his pleading in

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federal court, plaintiff may seek to voluntarily dismiss this action without prejudice and file anew

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once he has sufficient facts to file a pleading in good faith.3

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for extension of time (ECF No. 23) is denied; and

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2. Within fourteen days from the date of this order, plaintiff shall file an amended

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complaint or a request to voluntarily dismiss this action without prejudice.

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Dated: September 25, 2017

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/robb2697.extd

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Federal law determines when a claim accrues, and “[u]nder federal law, a claim accrues when
the plaintiff knows or should know of the injury that is the basis of the cause of action.” Douglas
v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (citation omitted); Maldonado v. Harris, 370 F.3d
945, 955 (9th Cir. 2004). Because section 1983 contains no specific statute of limitations, federal
courts should apply the forum state’s statute of limitations for personal injury actions. Jones v.
Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Maldonado, 370 F.3d at 954. California’s statute of
limitations for personal injury actions was extended to two years effective January 1, 2003. Cal.
Civ. Proc. Code § 335.1; Jones, 393 F.3d at 927; Maldonado, 370 F.3d at 954-55. However, the
new statute of limitations period does not apply retroactively. Maldonado, 370 F.3d at 955.
California law also tolls for two years the limitations period for inmates “imprisoned on a
criminal charge, or in execution under the sentence of a criminal court for a term less than for
life.” Cal. Civ. Proc. Code § 352.1.
Federal courts generally apply the forum state’s law regarding equitable tolling. Fink v.
Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Under California law, however, a plaintiff must meet
three conditions to equitably toll a statute of limitations: (1) he must have diligently pursued his
claim; (2) his situation must be the product of forces beyond his control; and (3) the defendants
must not be prejudiced by the application of equitable tolling. See Hull v. Central Pathology
Serv. Med. Clinic, 28 Cal. App. 4th 1328, 1335, 34 Cal. Rptr. 2d 175 (1994). In addition,
California’s equitable tolling doctrine “applies when an injured person has several legal remedies
and, reasonably and in good faith, pursues one.” McDonald v. Antelope Valley Community
College Dist., 45 Cal. 4th 88, 100, 84 Cal. Rptr. 3d 734 (Cal. 2008) (citation and internal
quotation marks omitted).
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